Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and states under penalty of perjury, the following:

I represent the National Coalition for Sexual Freedom ("NCSF") and file this affirmation in response to the Affirmation of Assistant District Attorney Mark Dwyer, dated January 26, 1999 (the "Dwyer Aff."), submitted in opposition to the NCSF's motion for leave to file a Memorandum of Law as amicus curiae in the above-captioned matter.

Whether due to negligence or willful misrepresentation, the District Attorney's Affirmation borders on the sanctionable. It contains numerous false statements and the District Attorney has, without using the exact words, accused the NCSF, and myself, of misrepresenting itself to this Court. The District Attorney falsely states that "the so-called NCSF is just such a phantom entity." (Dwyer Aff. ¦ 3). At one point, the District Attorney accuses the NCSF, and myself, of listing a "phoney address." (Dwyer Aff. ¦ 4). The District Attorney affirmed to this Court that "[f]rom all that appears, the NCSF might simply be one or two people who have a computer, internet access, and the capacity to create a website." (Dwyer Aff. ¦ 8). To make these statements, without any evidentiary support, should be enough to raise the ire of this Court; to do so, as the District Attorney does here, in the face of overwhelming evidence to the contrary, I believe borders on the sanctionable. As court filings are privileged, this filing provides our only redress to the District Attorney's defamation. While I cannot opine as to what degree of actual knowledge ADA Mark Dwyer had upon filing his affirmation, the Office of the District Attorney, as an institution, possessed information when it filed its affirmation that refutes many claims it subsequently made; information that clearly established that the NCSF is a recognized national not-for-profit organization with a duly constituted board and a substantial membership. Pointedly, the District Attorney had no difficulty effecting personal service upon the phantom it now asks this Court to ignore.

I note that at no time did the District Attorney attempt to contact me, the attorney of record, regarding the status of the NCSF. One would expect that, if the District Attorney honestly doubted the validity of the NCSF, its first move would be to call the telephone number on the Notice of Motion -- my number. To contact the attorney of record is not merely common courtesy and standard practice; it is also a critical element of due diligence prior to making the type of attack the District Attorney launched in its affirmation.

ATTORNEY'S KNOWLEDGE THEREOF

Far from a being a phantom, the NCSF consists of twenty organizations, some nearly thirty years old, whose combined membership is 6,500. When it filed the Notice of Motion, the NCSF did not believe it necessary to provide extensive background information. The NCSF, which had been in contact with the District Attorney's office regarding this case, was shocked to have its validity questioned. As its credibility, indeed its very existence, has been called into question, the NCSF now provides the Court with greater detail through this Affirmation and the attached Affidavit of NCSF Executive Director Susan Wright (the "Wright Aff."). I do not believe it is appropriate or helpful to flood this Court with affidavits at this point, but the NCSF stands willing to provide additional documentation and third party affidavits should the Court so desire. Throughout these documents this Court will note numerous contact addresses and phone numbers the Court may use to verify the information the NCSF presents

It should be noted that the District Attorney, while arguing this Court should ignore the NCSF as a phantom, failed to disclose that it has been in contact with the NCSF on this case since August 1998, and that it had worked extensively with a NCSF board member in a criminal investigation in 1996. NCSF Executive Director Susan Wright first contacted Assistant District Attorney Martha Bashford of the sex crimes unit regarding the Jovanovic case in August 1998. ADA Bashford discussed the concerns of the NCSF with Ms. Wright again in October 1998. (Wright Aff. ¦ 2). While the concerns of the NCSF were not fully addressed, nothing in the NCSF dealings with the District Attorney's office at that time indicated that the District Attorney believed it was dealing with a "phantom" or in any way challenged the validity of the NCSF.

ADA Bashford's name was not pulled out of hat; the NCSF contacted her because she had worked with a NCSF board member, the Gay Male S/M Activists ("GMSMA"), on a criminal investigation in 1996. (Wright Aff. ¦ 2). The mission statement of the GMSMA is annexed to the Wright Affidavit. Briefly, the GMSMA is a not-for-profit group established in 1982 to create a more supportive community for gay men involved in sadomasochism. The District Attorney's office utilized the resources of the GMSMA in identifying potential witnesses in what the New York media labled the "Dangerous Top" case. See"Dangerous Top" Unmasked: D.A. Investigates S/M Torture Charges, by Guy Trebay, Village Voice 1996, a copy of which is annexed to the Wright Affidavit. More details regarding the GMSMA and its work with the District Attorney's office can be provided if the Court so desires.

The District Attorney was aware when it filed its affirmation that the GMSMA was a board member of the NCSF. The District Attorney admits it reviewed the NCSF's website (https://ncsfreedom.org) prior to filling its affirmation (Dwyer Aff. ¦ 7). That website clearly identifies the GMSMA as a board member of the NCSF. The NCSF website clearly lists its Board of Directors and provides the ability to contact those organizations. When the board member is an organization, as is the case with the GMSMA, the website lists the individual from that organization presently serving on the NCSF board. The website also provides the names of nine staff members of the NCSF and the ability to contact those individuals. A printout of the NCSF website is attached to this affirmation; the names of the board and staff members appear on page 3. The underlined words are "hyperlinks." With one click on a hyperlink, a browser is taken directly to an individual e-mail address, in the case of the NCSF staff members, or to another website, as in the case of the board members. To the best of my knowledge, the District Attorney made absolutely no effort to contact any of the individuals or organizations listed on the NCSF website.

These facts of which the District Attorney's office was undoubtedly aware of prior to filing its affirmation more than refute the accusations made in that affirmation. The District Attorney cannot argue that the NCSF's credibility "would be suspect at best" (Dwyer Aff. ¦ 2) when it had in the past relied upon the credibility of one of the NCSF's board members. Nor can it can claim "that the so-called NCSF is just such a phantom entity" (Dwyer Aff. ¦ 3) after having discussions with the so-called phantom's executive director, identifying its board members, and nine of its staff members. And it is absurd to accuse the NCSF of listing "a phoney address" (Dwyer Aff. ¦ 4) when the District Attorney had no difficulty effecting personal service upon the NCSF at the address listed.

More egregious statements, however, exists in the affirmation. The District Attorney affirmed to this Court that "[f]rom all that appears, the NCSF might simply be one or two people who have a computer, internet access, and the capacity to create a website." (Dwyer Aff. ¦ 8). The District Attorney also affirmed that the NCSF "does not have a verifiable identity." (Dwyer Aff. ¦ 8). These statements are more than misleading, they are defamatory. At the time the District Attorney made these claims, it possessed the names of all seven NCSF board members, nine staff members, and the ability to contact them. ADA Dwyer may believe the NCSF and its website to be no more than a figment of my imagination, but he had an ethical obligation to at least attempt to contact those he dismisses as phantoms before affirming to this Court that the NCSF lacks a "verifiable identity." (Dwyer Aff. ¦ 8).

The District Attorney states that the NCSF "website makes no mention of Michael Fois or his affiliation, if any, with the NCSF." (Dwyer Aff. ¦ 7). I am at a loss as to the relevance of this information on whether the NCSF should be allowed to file an amicus brief. Had I believed my personal background to be of relevance I would have appended a resume. It is clear that the only point of this statement is to cast dispersions upon myself. While I believe ad hominem attacks normally not worthy of response, for the elucidation of the Court, I will briefly describe my background and relation to this case. I am not a member of the NCSF or of any of its member organizations and for that reason do not appear on their website. I was first contacted by the NCSF in mid 1998, having been referred to them by another attorney. I had recently left the legal department of the Federal Reserve Bank of New York, for which I had worked for seven years, the last four of which I was in the Litigation and Enforcement Division. In that capacity, I investigated banking fraud and had occasion to work with the District Attorney's office. I agreed to assist the NCSF, pro bono, because I was concerned that an overaction to a horrendous case could create bad law and reduce the civil liberties enjoyed by all New Yorkers. As has become axiomatic, hard cases make bad law. Northern securities Co. v. United States, 193 U.S. 197, 401 (1904)(Holmes, J., dissenting). My worst fears were realized when I saw the District Attorney's brief and the broadside it laid into civil liberties and consensual sexual conduct.

Through the statements discussed above, the District Attorney denigrates the NCSF and myself and attempts to convince this Court that we have misrepresented ourselves and are really nothing more than a pair of computer hackers who lack "recognized reliability, and expertise in legal matters." (Dwyer Aff. ¦ 2). This description contradicts the information possessed by the District Attorney at the time it filed its affirmation. Were such statements made outside of a court filing, they would constitute defamation per se.

MORE THAN TWO PEOPLE WITH A COMPUTER:

VERIFICATION OF THE NCSF

The District Attorney affirmed that "a comprehensive review of listings, phone books, and databases reveals no proof that there is such an organization as the NCSF." (Dwyer Aff. ¦ 3). We question both the scope and the effectiveness of the District Attorney's "comprehensive" review. It clearly failed to include the District Attorney's own records; if it had, it would have revealed ADA Bashford's contact with the NCSF as well as the involvement of the GMSMA in the Dangerous Top case. There simply are not that many cases dealing with sadomasochism in any context; its hard to imagine that a case less than three years old that generated substantial media coverage would fall through the cracks.

The District Attorney's "comprehensive" review also could not have included the local media, which has reported on the NCSF. See, Silence of the lambdas, by Katie Szymanski, New York Blade News, September 4, 1998, a copy of which is annexed to the Wright Affidavit. Nor could it have included the national media, for the NCSF gave nearly 50 radio interviews in 1998. (Wright Aff. ¦ 7). And although the District Attorney found the NCSF website, it could not have searched the world wide web. Had it, it would have found reports regarding the NCSF's lobbying and the NCSF's National Survey of Violence & Discrimination Against Sexual Minorities. See, e.g., GenderTalk at http://www.gendertalk.com/GTransgr/iyf897.htm; GenderNews at http://www.ifge.org/news/1998/april/nws4298c.htm. Clearly, the thousand plus respondents to the NCSF's survey had no difficulty finding the NCSF.

The District Attorney affirmed that "a thorough search of the relevant public records indicates that no organization named the 'National Coalition for Sexual Freedom' has ever filed for non-profit status." (Dwyer Aff. ¦ 3). The NCSF is not sure why the District Attorney failed to find the NCSF's filings. Perhaps the District Attorney only searched locally, not nationally. The NCSF's executive office is in New York, but its situs for incorporation and its not-for-profit status is in Washington DC The NCSF would have readily provided copies of the relevant documentation had the District Attorney so requested; it never did. The NCSF now provides, in the Wright Affidavit, contact information for its accountant and the attorney responsible for its incorporation and not-for-profit filings, should the Court desire confirmation of the NCSF's not-for-profit status. (Wright Aff. ¦ 2).

The District Attorney affirmed that the address provided by the NCSF "appears to be a phoney address." (Dwyer Aff. ¦ 4). Here the District Attorney explicitly accuses the NCSF and myself of making a misrepresentation to this Court; an accusation the District Attorney bases solely on the use of a Brooklyn address with a Manhattan phone number. To the best of my knowledge, the District Attorney made no effort to contact anyone at the listed address to determine whether, in fact, it belonged to the NCSF. I am a solo practitioner and do not maintain an office; so, for the purposes of this litigation, I utilized the executive office of my client, the NCSF, which is located in Brooklyn at the address originally listed on the Notice of Motion. (Wright Aff. ¦ 2). Like many not-for-profit organizations, the executive office of the NCSF is located at the residential address of its executive director. While I lack an office, I do have a phone and that information was supplied. Hence the Manhattan telephone number listed on the Notice of Motion. The District Attorney had no difficulty effecting personal service upon the NCSF at the address it insists is phoney.

The District Attorney notes that the zip code originally listed as part of the NCSF's address on the Notice of Motion was for lower Manhattan while the rest of the address was in Brooklyn. (Dwyer Aff. ¦ 4). The District Attorney misleadingly implies that this bolsters its "phoney address" assertion. The District Attorney, however, fails to disclose to this Court that it is aware the original zip code was a typographical error and that it was made aware of that typographical error the same day it was served the Notice of Motion. The NCSF subsequently provided the District Attorney with the correct zip code. The zip code error was discovered almost immediately after the Notice of Motion was filed -- which was the same day it was served, Friday, January 22, 1999. The District Attorney's office was informed of the error that same day; the specific individual was Carmen Mejia, tel. 335-9342. The correct zip code, the one the District Attorney used and lists in its affirmation, was provided to the District Attorney by the NCSF. The Appellant was also provided with the correct address and I personally corrected the addresses in the court filings.

The District Attorney notes that "this is the first attempt by the NCSF to inject itself into any legal proceeding." (Dwyer Aff. ¦ 6). The point of this statement escapes me, nor do I understand the relevance of this information on whether the NCSF should be allowed to file an amicus brief. Surely the District Attorney does not mean to imply that this Court should refuse to accept the NCSF amicus brief because it is its first legal foray? Under that logic, no organization would ever be allowed to file an amicus brief, for the first one will always be rejected as being the first one! Presumably, the District Attorney means to say that since the NCSF has not sued or been sued, or prosecuted, it must not exist. I do not believe this argument worth commenting on.

The District Attorney likewise affirmed that the NCSF "does not have a verifiable identity and, for all intents and purposes, is accountable to no one." (Dwyer Aff. ¦ 8). This statement is false. The truth is that, at best, the District Attorney chose not to verify the NCSF's identity. As described earlier, its "comprehensive review" was sorely lacking. (¦¦ 11-13, supra). One would think that, if the District Attorney truly doubted the validity of the NCSF, its first move would be to contact the attorney of record, yet no attempt was made to contact me. Nor was any attempt made to contact anyone associated with the NCSF or its member organizations. The information the District Attorney admits possessing, the information provided by the website, was more than sufficient to verify the NCSF's existence and dispel its purported fears of a couple of computer hackers perpetrating some kind of amicus shell game.. (See ¦ 7, supra). That the District Attorney chose not to verify the NCSF's existence is disheartening; that the District Attorney would affirm it could not verify the existence of the NCSF is frightening -- and false.

THE NCSF MUST BE HEARD

Despite the District Attorney's accusations to the contrary, the NCSF is not "accountable to no one." (Dwyer Aff. ¦ 8). It is accountable to its members, its Board of Directors, and, like myself, the NCSF is accountable to this Court. We made ourselves so when we asked to be heard. But the NCSF is not accountable to the District Attorney, and that seems to be the true rationale behind the District Attorney's opposition. Had District Attorney believed the NCSF's amicus brief aided them, I doubt they would have spent three pages trying to prove the NCSF does not exist. Throughout its affirmation, the District Attorney denigrates the NCSF. The NCSF is not concerned with these insults, for it is confident this Court will see through the attacks ad hominem to the weakness of the underlying substantive position.The NCSF, however, feels it must address the District Attorney's position that the NCSF, and its members, are not worthy of being heard by this Court. Indeed, it is because prosecutors are so confident that sexual minorities can be ignored that NCSF feels it must be heard.

The District Attorney asserts that the Notice of Motion was untimely and therefore that the brief should not be received. We disagree. The tight time frame was not created by the NCSF, nor did it work an injustice on any party. The District Attorney's brief was not filed until January 7, 1999, a mere three weeks ago. The need for an amicus brief was not clear prior to our review of the District Attorney's arguments. The NCSF could not have predicted the extreme position taken by the District Attorney in its brief, one that far exceeded any argument made at trial. The NCSF, with substantially less resources than the District Attorney's office, managed to produce and file the Notice of Motion, complete with draft amicus brief, two weeks after the District Attorney's filing. The District Attorney managed to file its opposition, which addresses legal arguments made by the NCSF, with time to spare. The time frame has not worked any unfairness to the District Attorney. The District Attorney's office was informed of NCSF's concerns nearly six months ago; it cannot now claim surprise.

The Court should note that when the NCSF decided to file an amicus brief, it reasonably believed that oral argument would not be before mid-February. (Wright Aff. ¦ 6). When I filed the Notice of Motion on January 22, 1999, I inquired of the clerk when would be the exact date of the oral argument. I was informed that a specific date had not been set but that the case was on the calendar for the mid-February term. This was, in fact, the fourth time I was informed the oral argument was scheduled for mid-February. The first was from Ms. Wright. The second time was when I arranged for the printing of the amicus brief. Michael Burns of Counsel Press, in my presence, called the First Department's clerks' office to clarify the procedures for filing an amicus brief, including the date for oral argument. This was on January 19, 1999. Once again, I was informed that the case was on the calendar for mid-February. The third time was later that same day, when I inquired in person at the Appellate Division, First Department. I was once again informed that by the clerks that oral argument was scheduled for mid-February. I did not learn that the actual oral argument date had been set for February 2, 1999, until I received the District Attorney's affirmation.

I recognize that it is counsel's responsibility, not that of the clerks, to ascertain the correct dates and I take full responsibility for any misunderstanding. I am, however, at a loss as to what additional steps I or the NCSF could have taken to ascertain the dates or expedite the process. I believe it would work an injustice to my client to refuse to accept its brief based on timing factors, especially since those factors did not harm any party and were not a result of any strategic decision by the NCSF.

The District Attorney asserts "the NCSF brief has nothing to offer on the merits." (Dwyer Aff. ¦ 10). While taking no position on the guilt or innocence of the Appellant, the NCSF amicus does addresses the merits of the legal issues raised -- the Constitutional right to privacy and the consent defense. The NCSF amicus provides an in depth analysis on Constitutional law as it impacts this case, an area the District Attorney ignored in its affirmation and barely addressed in its brief. Second, only the NCSF amicus addresses the ramifications of eliminating the consent defense to assault; specifically, the criminalization of consensual conduct ranging from body piercing to contact sports, as well as sadomasochism. Third, only the NCSF amicus provides background information and statistics on sadomasochism; material gleaned form respected social scientists and published in academic journals. The NCSF takes issue with the District Attorney's claim that "the NCSF cites only two New York cases that were not addressed in the People's brief." (Dwyer Aff. ¦ 11). In fact, the NCSF cites a half dozen New York cases not cited by the District Attorney. The cases the District Attorney failed to count are in the amicus

brief section on the State Constitution, an area of law the District Attorney apparently believes not worth addressing.

THE DISTRICT ATTORNEY'S NEW ARGUMENTS

The NCSF does not believe it would be helpful to the Court for us to engage in a point to point response of the District Attorney's response to our arguments; our legal arguments are in our brief. Notably, the District Attorney choose to spend nearly half its affirmation addressing the NCSF's "meritless" position. (Dwyer Aff. ¦¦ 10-15). In fact, the District Attorney submitted 7 pages requesting the Court not read 18! In light of the some 300 pages of briefs submitted by the District Attorney and the Appellant, the NCSF humbly requests this Court accept an additional 18 from the NCSF. The District Attorney concludes that "at bottom, the NCSF's claim is one not of law but of policy." (Dwyer Aff. ¦ 16). The NCSF believes our claim to be both of law and policy; it only ask this Court to address the law.

The NCSF does apologize to this Court for our failure to include in parenthetical information that one of the opinions cited, Mercury Bay Boating Club Inc. v. San Diego Yacht Club, 150 A.D.2d 82 (1st Dept. 1989), aff'd, 76 N.Y.2d 256 (1990), was a concurrence by the Justice Rubin. The NCSF strongly urges that this Court read Justice Rubin's opinion, as he traces the interaction of sportsmanship and law from Pierson v. Post, 3 Caines 175 (1805), through the consent defense to the modern day. Justice Rubin's opinion forced the District Attorney to admit that, in sports at least, "the courts would be required to determine whether consent might be a valid defense [to assault]." (Dwyer Aff. ¦ 13).

The NCSF believe it should address the one new legal citation the District Attorney added in its affirmation. In refuting the plethora of New York case law provide by the NCSF in the amicus brief, the District Attorney refers only to the Restatement (Second) Torts for the proposition that consent is not a defense to a criminal prosecution unless such a defense is provide by statute. (Dwyer Aff. ¦ 15, citing Restatement (Second) Torts ¤ 892C, cmt. a and ill.1). This "majority rule" summary of the general trends in American law is not linked by the District Attorney to the laws of the State of New York. In the face of an unbroken common law tradition, continuing to the present, the District Attorney bears the burden of proving that these decisions on the consent defense to assault have been overturned either by the courts or the legislature. The District Attorney has utterly failed to do so. They fail even to reconcile the Restatement's position with that expressed by Justice Rubin in Mercury Bay Boating Club Inc., a position the District Attorney quoted only two paragraphs earlier. (Dwyer Aff. ¦ 13).

The District Attorney states that the NCSF's belief that the position urged by the District Attorney would result in criminalizing all sadomasochistic conduct is an "absurd mischaracterization." (Dwyer Aff. ¦ 10). The District Attorney still does not get it. Without the consent defense, the Penal Law effectively criminalized not only sadomasochism but a host of other activities, including contact sports, body piercing, even a Rabbi performing a circumcision of an adult convert to Judaism! Such a result, the NCSF argues, would violate the State Constitution. The decision as to what conduct falls within the confines of the statute is, in the first instance, made by the District Attorney in the drafting of the indictment. While an indictment, of course, is a mere accusation, on the strength of such accusations defendants are subject to the risk, exposure, and expense of trial. As the Court noted in People v. Anonymous Female, 143 Misc.2d 197 (City Ct. Buffalo 1989), even innocent defendants will be reluctant to contest ill founded accusations in the glare of publicity. The assault statute can be expanded or contracted at the District Attorney's whim - and the District Attorney's disingenuous behavior in this case strongly leads the NCSF to distrust the District Attorney's whims. The NCSF requests this Court permit the filing of an amicus brief and to consider the argument that the consent defense recognized by Justice Rubin also applies to sadomasochism.

It is extremely important for members of NCSF constituent communities to understand the laws that may affect us.

Overview

The law is interpreted – sometimes to our favor, and sometimes not. For example, while the NCSF firmly believes that consensual SM activity between adults is legal, there are those that have a differing opinion and will intentionally interpret the law in an unfavorable way. Therefore, it is extremely important for the SM-Leather-Fetish communities to have an understanding of the laws that may affect us. Knowing relevant laws will greatly assist our communities in safely organizing and maintaining SM-Leather-Fetish activities and functions.

There are numerous laws, ordinances, and regulations at all levels of government - federal, state, regional, county and city. It's not easy to locate all of the laws that may affect us, but it's very important. You should make every attempt to thoroughly research your laws if your activities may come under the scrutiny of law enforcement or local authorities. In addition, NCSF recommends that thorough legal research should include consultation with a knowledgeable attorney, state Attorney General, local prosecutor, or other legal authority, familiar with the current interpretation of the law for the jurisdiction in question.

Obviously, it is impossible to provide a comprehensive list of every law and its interpretation for every jurisdiction, so this material is designed to give the reader a basic understanding of legal research and the tools to get started.

Research Realities

The question "Is SM legal in my state?" is not an appropriate research question. What we call "SM" includes a wide variety of behaviors, attitudes and acts without common legal terminology. For example, a state may not specifically prohibit "bondage" or "mummification", but every state has laws against holding someone against his/her will. The key term is not "SM" but rather "consent." Therefore, the better question to research might be "What types of consensual sexual expression are allowed under state and local laws?" or "How is consent defined by statutory and case law in the state?"

In many jurisdictions, only procreative consensual intercourse between married heterosexual couples in the privacy of the home is "legal." Therefore looking at all laws pertaining to sex may be a good place to start. Of course, sex laws are usually selectively enforced. And they can be contradictory: a local jurisdiction may recognize gay couples, but the state makes sodomy between people of the same sex a felony, then again, it doesn't enforce the law against anyone.

Finally, remember that if "they" want to get you, they'll look through everything including if your dog has the appropriate license or they will dig up laws that haven't been enforced in 30 or 100 years.

Statutes and Case Law in our Legal System

When people talk about "what the law says" or "what the law is," they are typically referring to statutes (sometimes called codes). When disputes arise over the meaning of statutes, state and federal courts issue court opinions that interpret the statutes -- this is "case law." In addition, numerous federal and state agencies, such as the Environmental Protection Agency, the IRS and the various Secretary of State's offices, issue regulations that cover the legal areas that the agencies control (such as environmental law, federal taxes and corporations law).

Researching Federal vs. State Statutes

States make the law in most of the areas related to alternative sexual practices, such as child custody, marriage, divorce, public indecency, assault, kidnapping, weapon violations, etc. A few areas now involve both state and federal statutes, including employment regulation. (Note: state laws usually give way to federal laws that address the same issue.)

Finding Relevant Statutes

There are two main ways to find a particular state or federal statute: (1) at a library or (2) on the web. We recommend using government websites to locate the applicable laws, where and when available, and as a preliminary research method. This should be followed up with hardcopy research at the library. You can locate relevant statutes on the internet by doing a keyword search or by browsing the table of contents. Not all states allow you to do a keyword search, but for the ones that do, you simply enter a few terms that relate to the subject you're looking for.

Searching Statutes

To do a good search you need to anticipate the words used in the statutes you are searching. Example: if you are looking for a statute that defines weapons in reference to the transportation of weapons on public highways, you might choose to use the search term "transport." If that search pulled up hundreds of statutes, you may try narrowing the search. You could try adding the words "weapon” and “public.” Or, if your search doesn’t pull up any statutes, you can try to broaden the search by using fewer or more common search terms.

Browsing Statutes

Browsing the table of contents of statutes is often a better way to find laws on your subject because it lets you look first at the general subjects (Titles, or sometimes Divisions). From there you can move to particular topics (Chapters, or sometimes Articles), and then to the precise statutes you need (Sections). By browsing, you also get a general idea of all the statutes there are on a specific subject.

Read Related Statutes / Ordinances

If you are interested in a particular area of the law (for example, adult entertainment regulations), you need to read all relevant statutes on that subject. If you don't, you may miss an important statute that contradicts the law you have found.

Example: A regulation may not specifically prohibit flagellation on the premises of an adult business, but a different regulation prohibits flagellation in instances where the adult business serves alcohol. Once you find a relevant statute/ordinance, you should continue searching until you are convinced that you’ve found every statute/ordinance that may affect that particular issue.

Understanding Statutes / Ordinances

Some statutes are clearly written, while others are very difficult to understand. Exceptions to the statute, "whereases" and cross-references to other statutes can make it very hard to understand what a statute means. Here are some rules to use when interpreting a statute:

• Read the statute several times.

• Pay close attention to all the "ands" and "ors." The use of "and" to end a series means that all elements of the series are included, or necessary, but an "or" at the end of a series means that only one of the elements need be included.

• Assume all words and punctuation in the statute have meaning. It’s tempting to skip words you don’t quite understand and ignore awkward punctuation. Don’t do it.

• If the statute is but one of a number you are studying, interpret it to be consistent with the other statutes if at all possible.

• Interpret a statute so that it makes sense rather than lead to some absurd or improbable result.

• Track down all cross-references to other statutes and sections and read those statutes and sections.

Making Sure the Statutes are Up to Date

Many state statutes on the web are not up to date, but the state website will usually tell you the year that the collection was last updated. If the statutes are out of date, you'll need to find out if any statutes you're interested in were amended or repealed by the legislature since the posting date. You can do this by doing a search of all the bills passed in the state since the posting date. These bills should be available on the state legislature's website.

The Importance of Case Law

When disputes arise over the meaning of statutes, judges are called on to interpret the statutes. Judges' interpretations of those statutes -- called "opinions", "decisions", or "cases" -- are as important to understanding what the law is as the words of the statutes itself. So once you find a statute that seems to address your situation, consider taking the next step and see how the courts have interpreted it.

The U.S. Supreme Court

The Supreme Court is the highest federal court in the country, and its opinions are the final word on what the law means. The Supreme Court can decide what a legislature meant when it wrote a law, or it can even overturn (revoke) a federal or state statute if it finds it unconstitutional.

Recommended Topics to Research

There is no common legal terminology for "SM" per se because SM includes a wide variety of behaviors that have not been categorized. So look for laws governing sexual behavior generally, including prostitution, rape, sexual assault, sodomy, etc. Other terms such as "flagellation" and "sadomasochistic abuse" may bring up some statutory, regulatory or case law, particularly when searching a large, cross-referenced database. Here are some keywords that may assist you in your research:

Abuse

Adult

Adult Entertainment

Alcohol

Assault

Battery

Consensual

Consent

False Imprisonment

Flagellation

Indecent

Kidnapping

Knife

Lewd

Minor

Ordinance

Paraphernalia

Permits

Police

Public

Rape

Sadomasochism

Sadomasochistic

Sex

Sexual

Statute

Uniforms

Weapon

Zoning

Selected Basic Legal Terms:

Annotated Codes - Publications that combine statutes with cases that interpret the statutes.

Bill - What a statute is called when it is introduced in Congress or a state legislature prior to becoming a law. An assigned number is used to refer to a bill. The number has two parts: HB (House Bill) or SB (Senate Bill) depending on where it was introduced, and the number that identifies the particular bill. Example: SB1137

Case Law – is an opinion from the state and federal courts that interpret statutes.

Chapter - A term that identifies a group of related state or federal statutes that have been gathered together within a particular Title or Code. Example: Virginia Statutes, Title 18.2, Chapter 4 is “Crimes Against the Person”

Citation - Is a reference to a statute that describes where it is published. Example: the federal citation “42 USC 1021” tells us that this cited federal statute can be found in Title 42, Section 1021 of the United States Code

Code - In general, "Code" refers to the main body of statutes of the jurisdiction. Example: the Arizona State Code

Ordinance / Regulation – A law at the local (city or county) level.

Statutory Schemes – Are groups of statutes that relate to one particular subject. Example: all of the federal statutes that make up Title VII of the Civil Rights Act (which forbids employment discrimination and sexual harassment) are known as a statutory scheme because they are all related to each other

Title - In the federal system and in some states, "Title" is used to denote a collection of state or federal statutes by subject matter, as in Title 42 of the U.S. Code for civil rights statutes.

Policy Emphasis

2. Each situation is unique - there are no blanket rules or tactics that will work in every situation. Decisions concerning law enforcement related issues must be decided based on all available information at the time.

Disclaimer: The material presented is not offered as legal advice. Many options are suggested for dealing with law enforcement and other authorities. The best course of action for you to take in a given situation is dependent on that situation and is entirely up to the parties involved. No single option is always going to work. Remember that situations, laws, and attitudes will vary from place to place and from time to time.

2. I write this affidavit in response to the DA's Brief in Opposition to the NCSF request to file an Amicus Curia Brief. I am at a loss as to why the Appellate Division of the DA's office has labeled the NCSF a "phantom entity. In August 1998, I contacted Martha Bashford at the D.A.'s office because she had worked with one of the NCSF Board organizations, Gay Male S/M Activists (GMSMA) , on a criminal case (the so-called Dangerous Top, Michael Payte). (see Appendix A, Village Voice article by Guy Trebay.) Martha Bashford suggested I send an email proposing that: the NCSF and the DA's office have a meeting to ensure the DA's position would not harm our constituents. I received no response to my requests, and contacted Martha Bashford again in October 1998. We spoke briefly, but no arrangements were made at that point for a meeting. In late l998, the NCSF began considering the necessity of filing an Amicus Brief.

3. The NCSF was founded in 1997 and consists of 20 organizations with a combined membership of 6,500. The NCSF is an advocacy and lobbying organization that supports the understanding and tolerance of sexual minority practices. The NCSF has been noted by the New York media in this capacity (see Appendix B, article from the New York Blade which cites NCSF's activity on sexual liberation issues). NCSF is in the process of incorporating in the State of Virginia and applying for a 501(C)4 status. Our accountant is: Rob Lyons at (301) 6648204; and our filing attorney is Jeff Yablon at Shaw Pittman, 2300 N. Street N.W , Washington DC 20)37. The executive office of the NCSF is currently in my home office at 381 Manhattan Avenue, Brooklyn, NY, 11211 (718)383-3318. Additional information on NCSF can be provided upon request.

The Board of Directors of the NCSF consists of representatives from five of the largest and oldest organizations (dating back to 1971) in our coalition. Most of these organizations enjoy formal not-for-profit status in their own right. (See Appendix: one-page mission statements from each of the five organizations sitting on the Board of the NCSF.) The Board Members are:

6. On January 7th 1993, the NCSF received a copy of the D.A.'s brief which by eliminating consent as a defense and denying the constitutionality of practicing sadomasochism, effectively criminalizes sadomasochistic activity. The NCSF retained Michael T. Fois as Counsel of Record to file an Amicus Brief on behalf of our organization. At that time, we believed oral argument was scheduled for mid-February.

7. This is the first time the NCSF has injected itself into any legal proceeding, however the NCSF has been active in both National and local sexual minority issues. we release a weekly Media Update (archived on our website at www.ncsfreedom.org) covering sexual minorities in the news media, and as part of our anti-defamation efforts, the NCSF opposed the State University of NY's condemnation of President Bowen for including sexual minority topics in a Women's Conference at SUNY New Paltz. The NCSF participated in Lobby Day in April 1997 in Washington DC, lobbying for equality in the workplace for sexual minorities. The NCSF is currently analyzing the 1,000+ returned surveys from the lst National Survey of Violence & Discrimination Against Sexual Minorities, and in the summer of 1998, I gave over 50 radio interviews around the country on the preliminary results of this survey.

8. The reaction of the D.A. after the attempts the NCSF has made to open a dialogue on this matter simply proves the need for diligent representation of sexual minority issues. Mark Dwyer states in his Opposition: "under the Penal Law, if a sadomasochist engages in conduct that falls within the assault statutes (e.g., in intentionally causing physical injury or I serious physical injury to another) , he is guilty of assault, regardless of whether the victim I consents." There are tens of thousands of practitioners of sadomasochism in New York who would be justifiably concerned with this statement, as it comes from a D.A. who has already concluded that hot candle wax is "a dangerous weapon." The NCSF contends that consent is the basis for determining if an activity is sadomasochism rather than assault. The DA has ignored our offers to educate them as to sadomasochistic practices and the nature of consent in those practices. We hope this Court is more receptive.

Susan Wright

JENNIFER PREVETE
Notary Public, State of New York
No. 0 1 PR6010126
Qualified in Kings County

Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and states under penalty of perjury, the following:

I represent the National Coalition for Sexual Freedom ("NCSF") and file this affirmation in response to the Affirmation of Assistant District Attorney Mark Dwyer, dated January 26, 1999 (the "Dwyer Aff."), submitted in opposition to the NCSF's motion for leave to file a Memorandum of Law as amicus curiae in the above-captioned matter.

Whether due to negligence or willful misrepresentation, the District Attorney's Affirmation borders on the sanctionable. It contains numerous false statements and the District Attorney has, without using the exact words, accused the NCSF, and myself, of misrepresenting itself to this Court. The District Attorney falsely states that "the so-called NCSF is just such a phantom entity." (Dwyer Aff. ¦ 3). At one point, the District Attorney accuses the NCSF, and myself, of listing a "phoney address." (Dwyer Aff. ¦ 4). The District Attorney affirmed to this Court that "[f]rom all that appears, the NCSF might simply be one or two people who have a computer, internet access, and the capacity to create a website." (Dwyer Aff. ¦ 8). To make these statements, without any evidentiary support, should be enough to raise the ire of this Court; to do so, as the District Attorney does here, in the face of overwhelming evidence to the contrary, I believe borders on the sanctionable. As court filings are privileged, this filing provides our only redress to the District Attorney's defamation. While I cannot opine as to what degree of actual knowledge ADA Mark Dwyer had upon filing his affirmation, the Office of the District Attorney, as an institution, possessed information when it filed its affirmation that refutes many claims it subsequently made; information that clearly established that the NCSF is a recognized national not-for-profit organization with a duly constituted board and a substantial membership. Pointedly, the District Attorney had no difficulty effecting personal service upon the phantom it now asks this Court to ignore.

I note that at no time did the District Attorney attempt to contact me, the attorney of record, regarding the status of the NCSF. One would expect that, if the District Attorney honestly doubted the validity of the NCSF, its first move would be to call the telephone number on the Notice of Motion -- my number. To contact the attorney of record is not merely common courtesy and standard practice; it is also a critical element of due diligence prior to making the type of attack the District Attorney launched in its affirmation.

ATTORNEY'S KNOWLEDGE THEREOF

Far from a being a phantom, the NCSF consists of twenty organizations, some nearly thirty years old, whose combined membership is 6,500. When it filed the Notice of Motion, the NCSF did not believe it necessary to provide extensive background information. The NCSF, which had been in contact with the District Attorney's office regarding this case, was shocked to have its validity questioned. As its credibility, indeed its very existence, has been called into question, the NCSF now provides the Court with greater detail through this Affirmation and the attached Affidavit of NCSF Executive Director Susan Wright (the "Wright Aff."). I do not believe it is appropriate or helpful to flood this Court with affidavits at this point, but the NCSF stands willing to provide additional documentation and third party affidavits should the Court so desire. Throughout these documents this Court will note numerous contact addresses and phone numbers the Court may use to verify the information the NCSF presents

It should be noted that the District Attorney, while arguing this Court should ignore the NCSF as a phantom, failed to disclose that it has been in contact with the NCSF on this case since August 1998, and that it had worked extensively with a NCSF board member in a criminal investigation in 1996. NCSF Executive Director Susan Wright first contacted Assistant District Attorney Martha Bashford of the sex crimes unit regarding the Jovanovic case in August 1998. ADA Bashford discussed the concerns of the NCSF with Ms. Wright again in October 1998. (Wright Aff. ¦ 2). While the concerns of the NCSF were not fully addressed, nothing in the NCSF dealings with the District Attorney's office at that time indicated that the District Attorney believed it was dealing with a "phantom" or in any way challenged the validity of the NCSF.

ADA Bashford's name was not pulled out of hat; the NCSF contacted her because she had worked with a NCSF board member, the Gay Male S/M Activists ("GMSMA"), on a criminal investigation in 1996. (Wright Aff. ¦ 2). The mission statement of the GMSMA is annexed to the Wright Affidavit. Briefly, the GMSMA is a not-for-profit group established in 1982 to create a more supportive community for gay men involved in sadomasochism. The District Attorney's office utilized the resources of the GMSMA in identifying potential witnesses in what the New York media labled the "Dangerous Top" case. See"Dangerous Top" Unmasked: D.A. Investigates S/M Torture Charges, by Guy Trebay, Village Voice 1996, a copy of which is annexed to the Wright Affidavit. More details regarding the GMSMA and its work with the District Attorney's office can be provided if the Court so desires.

The District Attorney was aware when it filed its affirmation that the GMSMA was a board member of the NCSF. The District Attorney admits it reviewed the NCSF's website (https://ncsfreedom.org) prior to filling its affirmation (Dwyer Aff. ¦ 7). That website clearly identifies the GMSMA as a board member of the NCSF. The NCSF website clearly lists its Board of Directors and provides the ability to contact those organizations. When the board member is an organization, as is the case with the GMSMA, the website lists the individual from that organization presently serving on the NCSF board. The website also provides the names of nine staff members of the NCSF and the ability to contact those individuals. A printout of the NCSF website is attached to this affirmation; the names of the board and staff members appear on page 3. The underlined words are "hyperlinks." With one click on a hyperlink, a browser is taken directly to an individual e-mail address, in the case of the NCSF staff members, or to another website, as in the case of the board members. To the best of my knowledge, the District Attorney made absolutely no effort to contact any of the individuals or organizations listed on the NCSF website.

These facts of which the District Attorney's office was undoubtedly aware of prior to filing its affirmation more than refute the accusations made in that affirmation. The District Attorney cannot argue that the NCSF's credibility "would be suspect at best" (Dwyer Aff. ¦ 2) when it had in the past relied upon the credibility of one of the NCSF's board members. Nor can it can claim "that the so-called NCSF is just such a phantom entity" (Dwyer Aff. ¦ 3) after having discussions with the so-called phantom's executive director, identifying its board members, and nine of its staff members. And it is absurd to accuse the NCSF of listing "a phoney address" (Dwyer Aff. ¦ 4) when the District Attorney had no difficulty effecting personal service upon the NCSF at the address listed.

More egregious statements, however, exists in the affirmation. The District Attorney affirmed to this Court that "[f]rom all that appears, the NCSF might simply be one or two people who have a computer, internet access, and the capacity to create a website." (Dwyer Aff. ¦ 8). The District Attorney also affirmed that the NCSF "does not have a verifiable identity." (Dwyer Aff. ¦ 8). These statements are more than misleading, they are defamatory. At the time the District Attorney made these claims, it possessed the names of all seven NCSF board members, nine staff members, and the ability to contact them. ADA Dwyer may believe the NCSF and its website to be no more than a figment of my imagination, but he had an ethical obligation to at least attempt to contact those he dismisses as phantoms before affirming to this Court that the NCSF lacks a "verifiable identity." (Dwyer Aff. ¦ 8).

The District Attorney states that the NCSF "website makes no mention of Michael Fois or his affiliation, if any, with the NCSF." (Dwyer Aff. ¦ 7). I am at a loss as to the relevance of this information on whether the NCSF should be allowed to file an amicus brief. Had I believed my personal background to be of relevance I would have appended a resume. It is clear that the only point of this statement is to cast dispersions upon myself. While I believe ad hominem attacks normally not worthy of response, for the elucidation of the Court, I will briefly describe my background and relation to this case. I am not a member of the NCSF or of any of its member organizations and for that reason do not appear on their website. I was first contacted by the NCSF in mid 1998, having been referred to them by another attorney. I had recently left the legal department of the Federal Reserve Bank of New York, for which I had worked for seven years, the last four of which I was in the Litigation and Enforcement Division. In that capacity, I investigated banking fraud and had occasion to work with the District Attorney's office. I agreed to assist the NCSF, pro bono, because I was concerned that an overaction to a horrendous case could create bad law and reduce the civil liberties enjoyed by all New Yorkers. As has become axiomatic, hard cases make bad law. Northern securities Co. v. United States, 193 U.S. 197, 401 (1904)(Holmes, J., dissenting). My worst fears were realized when I saw the District Attorney's brief and the broadside it laid into civil liberties and consensual sexual conduct.

Through the statements discussed above, the District Attorney denigrates the NCSF and myself and attempts to convince this Court that we have misrepresented ourselves and are really nothing more than a pair of computer hackers who lack "recognized reliability, and expertise in legal matters." (Dwyer Aff. ¦ 2). This description contradicts the information possessed by the District Attorney at the time it filed its affirmation. Were such statements made outside of a court filing, they would constitute defamation per se.

MORE THAN TWO PEOPLE WITH A COMPUTER:

VERIFICATION OF THE NCSF

The District Attorney affirmed that "a comprehensive review of listings, phone books, and databases reveals no proof that there is such an organization as the NCSF." (Dwyer Aff. ¦ 3). We question both the scope and the effectiveness of the District Attorney's "comprehensive" review. It clearly failed to include the District Attorney's own records; if it had, it would have revealed ADA Bashford's contact with the NCSF as well as the involvement of the GMSMA in the Dangerous Top case. There simply are not that many cases dealing with sadomasochism in any context; its hard to imagine that a case less than three years old that generated substantial media coverage would fall through the cracks.

The District Attorney's "comprehensive" review also could not have included the local media, which has reported on the NCSF. See, Silence of the lambdas, by Katie Szymanski, New York Blade News, September 4, 1998, a copy of which is annexed to the Wright Affidavit. Nor could it have included the national media, for the NCSF gave nearly 50 radio interviews in 1998. (Wright Aff. ¦ 7). And although the District Attorney found the NCSF website, it could not have searched the world wide web. Had it, it would have found reports regarding the NCSF's lobbying and the NCSF's National Survey of Violence & Discrimination Against Sexual Minorities. See, e.g., GenderTalk at http://www.gendertalk.com/GTransgr/iyf897.htm; GenderNews at http://www.ifge.org/news/1998/april/nws4298c.htm. Clearly, the thousand plus respondents to the NCSF's survey had no difficulty finding the NCSF.

The District Attorney affirmed that "a thorough search of the relevant public records indicates that no organization named the 'National Coalition for Sexual Freedom' has ever filed for non-profit status." (Dwyer Aff. ¦ 3). The NCSF is not sure why the District Attorney failed to find the NCSF's filings. Perhaps the District Attorney only searched locally, not nationally. The NCSF's executive office is in New York, but its situs for incorporation and its not-for-profit status is in Washington DC The NCSF would have readily provided copies of the relevant documentation had the District Attorney so requested; it never did. The NCSF now provides, in the Wright Affidavit, contact information for its accountant and the attorney responsible for its incorporation and not-for-profit filings, should the Court desire confirmation of the NCSF's not-for-profit status. (Wright Aff. ¦ 2).

The District Attorney affirmed that the address provided by the NCSF "appears to be a phoney address." (Dwyer Aff. ¦ 4). Here the District Attorney explicitly accuses the NCSF and myself of making a misrepresentation to this Court; an accusation the District Attorney bases solely on the use of a Brooklyn address with a Manhattan phone number. To the best of my knowledge, the District Attorney made no effort to contact anyone at the listed address to determine whether, in fact, it belonged to the NCSF. I am a solo practitioner and do not maintain an office; so, for the purposes of this litigation, I utilized the executive office of my client, the NCSF, which is located in Brooklyn at the address originally listed on the Notice of Motion. (Wright Aff. ¦ 2). Like many not-for-profit organizations, the executive office of the NCSF is located at the residential address of its executive director. While I lack an office, I do have a phone and that information was supplied. Hence the Manhattan telephone number listed on the Notice of Motion. The District Attorney had no difficulty effecting personal service upon the NCSF at the address it insists is phoney.

The District Attorney notes that the zip code originally listed as part of the NCSF's address on the Notice of Motion was for lower Manhattan while the rest of the address was in Brooklyn. (Dwyer Aff. ¦ 4). The District Attorney misleadingly implies that this bolsters its "phoney address" assertion. The District Attorney, however, fails to disclose to this Court that it is aware the original zip code was a typographical error and that it was made aware of that typographical error the same day it was served the Notice of Motion. The NCSF subsequently provided the District Attorney with the correct zip code. The zip code error was discovered almost immediately after the Notice of Motion was filed -- which was the same day it was served, Friday, January 22, 1999. The District Attorney's office was informed of the error that same day; the specific individual was Carmen Mejia, tel. 335-9342. The correct zip code, the one the District Attorney used and lists in its affirmation, was provided to the District Attorney by the NCSF. The Appellant was also provided with the correct address and I personally corrected the addresses in the court filings.

The District Attorney notes that "this is the first attempt by the NCSF to inject itself into any legal proceeding." (Dwyer Aff. ¦ 6). The point of this statement escapes me, nor do I understand the relevance of this information on whether the NCSF should be allowed to file an amicus brief. Surely the District Attorney does not mean to imply that this Court should refuse to accept the NCSF amicus brief because it is its first legal foray? Under that logic, no organization would ever be allowed to file an amicus brief, for the first one will always be rejected as being the first one! Presumably, the District Attorney means to say that since the NCSF has not sued or been sued, or prosecuted, it must not exist. I do not believe this argument worth commenting on.

The District Attorney likewise affirmed that the NCSF "does not have a verifiable identity and, for all intents and purposes, is accountable to no one." (Dwyer Aff. ¦ 8). This statement is false. The truth is that, at best, the District Attorney chose not to verify the NCSF's identity. As described earlier, its "comprehensive review" was sorely lacking. (¦¦ 11-13, supra). One would think that, if the District Attorney truly doubted the validity of the NCSF, its first move would be to contact the attorney of record, yet no attempt was made to contact me. Nor was any attempt made to contact anyone associated with the NCSF or its member organizations. The information the District Attorney admits possessing, the information provided by the website, was more than sufficient to verify the NCSF's existence and dispel its purported fears of a couple of computer hackers perpetrating some kind of amicus shell game.. (See ¦ 7, supra). That the District Attorney chose not to verify the NCSF's existence is disheartening; that the District Attorney would affirm it could not verify the existence of the NCSF is frightening -- and false.

THE NCSF MUST BE HEARD

Despite the District Attorney's accusations to the contrary, the NCSF is not "accountable to no one." (Dwyer Aff. ¦ 8). It is accountable to its members, its Board of Directors, and, like myself, the NCSF is accountable to this Court. We made ourselves so when we asked to be heard. But the NCSF is not accountable to the District Attorney, and that seems to be the true rationale behind the District Attorney's opposition. Had District Attorney believed the NCSF's amicus brief aided them, I doubt they would have spent three pages trying to prove the NCSF does not exist. Throughout its affirmation, the District Attorney denigrates the NCSF. The NCSF is not concerned with these insults, for it is confident this Court will see through the attacks ad hominem to the weakness of the underlying substantive position.The NCSF, however, feels it must address the District Attorney's position that the NCSF, and its members, are not worthy of being heard by this Court. Indeed, it is because prosecutors are so confident that sexual minorities can be ignored that NCSF feels it must be heard.

The District Attorney asserts that the Notice of Motion was untimely and therefore that the brief should not be received. We disagree. The tight time frame was not created by the NCSF, nor did it work an injustice on any party. The District Attorney's brief was not filed until January 7, 1999, a mere three weeks ago. The need for an amicus brief was not clear prior to our review of the District Attorney's arguments. The NCSF could not have predicted the extreme position taken by the District Attorney in its brief, one that far exceeded any argument made at trial. The NCSF, with substantially less resources than the District Attorney's office, managed to produce and file the Notice of Motion, complete with draft amicus brief, two weeks after the District Attorney's filing. The District Attorney managed to file its opposition, which addresses legal arguments made by the NCSF, with time to spare. The time frame has not worked any unfairness to the District Attorney. The District Attorney's office was informed of NCSF's concerns nearly six months ago; it cannot now claim surprise.

The Court should note that when the NCSF decided to file an amicus brief, it reasonably believed that oral argument would not be before mid-February. (Wright Aff. ¦ 6). When I filed the Notice of Motion on January 22, 1999, I inquired of the clerk when would be the exact date of the oral argument. I was informed that a specific date had not been set but that the case was on the calendar for the mid-February term. This was, in fact, the fourth time I was informed the oral argument was scheduled for mid-February. The first was from Ms. Wright. The second time was when I arranged for the printing of the amicus brief. Michael Burns of Counsel Press, in my presence, called the First Department's clerks' office to clarify the procedures for filing an amicus brief, including the date for oral argument. This was on January 19, 1999. Once again, I was informed that the case was on the calendar for mid-February. The third time was later that same day, when I inquired in person at the Appellate Division, First Department. I was once again informed that by the clerks that oral argument was scheduled for mid-February. I did not learn that the actual oral argument date had been set for February 2, 1999, until I received the District Attorney's affirmation.

I recognize that it is counsel's responsibility, not that of the clerks, to ascertain the correct dates and I take full responsibility for any misunderstanding. I am, however, at a loss as to what additional steps I or the NCSF could have taken to ascertain the dates or expedite the process. I believe it would work an injustice to my client to refuse to accept its brief based on timing factors, especially since those factors did not harm any party and were not a result of any strategic decision by the NCSF.

The District Attorney asserts "the NCSF brief has nothing to offer on the merits." (Dwyer Aff. ¦ 10). While taking no position on the guilt or innocence of the Appellant, the NCSF amicus does addresses the merits of the legal issues raised -- the Constitutional right to privacy and the consent defense. The NCSF amicus provides an in depth analysis on Constitutional law as it impacts this case, an area the District Attorney ignored in its affirmation and barely addressed in its brief. Second, only the NCSF amicus addresses the ramifications of eliminating the consent defense to assault; specifically, the criminalization of consensual conduct ranging from body piercing to contact sports, as well as sadomasochism. Third, only the NCSF amicus provides background information and statistics on sadomasochism; material gleaned form respected social scientists and published in academic journals. The NCSF takes issue with the District Attorney's claim that "the NCSF cites only two New York cases that were not addressed in the People's brief." (Dwyer Aff. ¦ 11). In fact, the NCSF cites a half dozen New York cases not cited by the District Attorney. The cases the District Attorney failed to count are in the amicus

brief section on the State Constitution, an area of law the District Attorney apparently believes not worth addressing.

THE DISTRICT ATTORNEY'S NEW ARGUMENTS

The NCSF does not believe it would be helpful to the Court for us to engage in a point to point response of the District Attorney's response to our arguments; our legal arguments are in our brief. Notably, the District Attorney choose to spend nearly half its affirmation addressing the NCSF's "meritless" position. (Dwyer Aff. ¦¦ 10-15). In fact, the District Attorney submitted 7 pages requesting the Court not read 18! In light of the some 300 pages of briefs submitted by the District Attorney and the Appellant, the NCSF humbly requests this Court accept an additional 18 from the NCSF. The District Attorney concludes that "at bottom, the NCSF's claim is one not of law but of policy." (Dwyer Aff. ¦ 16). The NCSF believes our claim to be both of law and policy; it only ask this Court to address the law.

The NCSF does apologize to this Court for our failure to include in parenthetical information that one of the opinions cited, Mercury Bay Boating Club Inc. v. San Diego Yacht Club, 150 A.D.2d 82 (1st Dept. 1989), aff'd, 76 N.Y.2d 256 (1990), was a concurrence by the Justice Rubin. The NCSF strongly urges that this Court read Justice Rubin's opinion, as he traces the interaction of sportsmanship and law from Pierson v. Post, 3 Caines 175 (1805), through the consent defense to the modern day. Justice Rubin's opinion forced the District Attorney to admit that, in sports at least, "the courts would be required to determine whether consent might be a valid defense [to assault]." (Dwyer Aff. ¦ 13).

The NCSF believe it should address the one new legal citation the District Attorney added in its affirmation. In refuting the plethora of New York case law provide by the NCSF in the amicus brief, the District Attorney refers only to the Restatement (Second) Torts for the proposition that consent is not a defense to a criminal prosecution unless such a defense is provide by statute. (Dwyer Aff. ¦ 15, citing Restatement (Second) Torts ¤ 892C, cmt. a and ill.1). This "majority rule" summary of the general trends in American law is not linked by the District Attorney to the laws of the State of New York. In the face of an unbroken common law tradition, continuing to the present, the District Attorney bears the burden of proving that these decisions on the consent defense to assault have been overturned either by the courts or the legislature. The District Attorney has utterly failed to do so. They fail even to reconcile the Restatement's position with that expressed by Justice Rubin in Mercury Bay Boating Club Inc., a position the District Attorney quoted only two paragraphs earlier. (Dwyer Aff. ¦ 13).

The District Attorney states that the NCSF's belief that the position urged by the District Attorney would result in criminalizing all sadomasochistic conduct is an "absurd mischaracterization." (Dwyer Aff. ¦ 10). The District Attorney still does not get it. Without the consent defense, the Penal Law effectively criminalized not only sadomasochism but a host of other activities, including contact sports, body piercing, even a Rabbi performing a circumcision of an adult convert to Judaism! Such a result, the NCSF argues, would violate the State Constitution. The decision as to what conduct falls within the confines of the statute is, in the first instance, made by the District Attorney in the drafting of the indictment. While an indictment, of course, is a mere accusation, on the strength of such accusations defendants are subject to the risk, exposure, and expense of trial. As the Court noted in People v. Anonymous Female, 143 Misc.2d 197 (City Ct. Buffalo 1989), even innocent defendants will be reluctant to contest ill founded accusations in the glare of publicity. The assault statute can be expanded or contracted at the District Attorney's whim - and the District Attorney's disingenuous behavior in this case strongly leads the NCSF to distrust the District Attorney's whims. The NCSF requests this Court permit the filing of an amicus brief and to consider the argument that the consent defense recognized by Justice Rubin also applies to sadomasochism.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT

------------------------------------------------------

THE PEOPLE OF THE STATE OF NEW YORK

Respondent, AFFIRMATION IN OPPOSITION TO MOTION TO FILE A

-against- MEMORANDUM OF LAW

AMICUS CURIAE

OLIVER JOVANOVIC,

N.Y. Co. Ind. No. 10938/96

Defendant-Appellant.

Cal. No. 98-10474

------------------------------------------------------

MARK DWYER, an attorney duly admitted to practice before the courts of this state, affirms:

1. I am an Assistant District Attorney, of counsel to ROBERT M. MORGENTHAU, District Attorney of New York County. I submit this affirmation in response to the motion of Michael Thomas Fois in the above-captioned matter. Mr. Fois identifies himself as an attorney for the National Coalition for Sexual Freedom (NCSF), and seeks leave to file a Memorandum of Law amicus curiae on behalf of that organization (Fois Aff. 1).

2. Of course, this Court has the discretion to permit interested parties to file amicus curiae briefs that may prove helpful to the Court. However, the People respectfully submit that this Court should accept amicus briefs only from organizations with recognized reliability, and expertise in legal matters. On a practical level, there is no point in burdening the Court, or the parties, with a brief filed by a phantom entity. Furthermore, the credibility of such an organization would be suspect at best, which would raise serious doubts about the substance of any arguments it wishes to present.

3. Our research reveals that the so-called NCSF isjust such a phantom entity. About all that Mr. Fois asserts concerning the NCSF is that it is a "not for profit organization, founded to defend the right of American citizens to individual autonomy and privacy in the sexual sphere" (Fois Aff. t 2) However, a comprehensive review of listings, phone books, and databases reveals no proof that there is such an organization as the NCSF.Indeed, a thorough search of the relevant public records indicates that no organization named the "National Coalition for Sexual Freedom" has ever filed for non-profit status, nor has any such organization filed a tax return or been chartered as a business entity.

4. In his motion, Mr. Fois lists the address of the NCSF as 381 Manhattan Avenue, Brooklyn, NY 10009, and lists its phone number as (212) 353-8984 (Notice of Mot.). This appears to be a phony address. For starters, the phone number is a Manhattan phone number (area code 212), while the address is in Brooklyn. And the zip code listed (10009) is located in lower Manhattan -- not in Brooklyn. The correct zip code for 381 Manhattan Avenue in Brooklyn is 11211.

5. Moreover, no organization called the NCSF is listed at either the address or phone number provided by Mr. Fois. The address is not a business address; it is a residential apartment building. Neither Mr. Fois nor the NCSF islisted as a resident of that building. The phone number provided is a residential number, listed in the Manhattan phone book as belonging to Mr. Fois.

6. Further, there is no mention of the NCSF in any reported opinion, in any jurisdiction. As far as we can tell, this is the first attempt by the NCSF to inject itself into any legal proceeding.

7. While the NCSF does not seem to exist in the "real" world, it does appear to exist in the "virtual" world of cyberspace. The NCSF has a website (httv://www.ncsfreedom.org), which is dedicated to the discussion of various sexual practices (including, but not limited to, sadomasochism) , and which contains links to other websites of a similar nature. The website makes no mention of Michael Fois or his affiliation, if any, with the NCSF.

From all that appears, the NCSF might simply be one or two people who have a computer, internet access, and the capacity to create a website. It does not have a verifiable identity and, for all intents and purposes, is accountable to no one. Under these circumstances, the People respectfully submit that it would not be a sound exercise of discretion for this Court to accept an amicus brief from the NCSF.

Furthermore, the NCSF's motion to file a Memorandum of Law amicus curiae is untimely. As this

Court is undoubtedly aware, this case has attracted more than its share of media attention.

Yet the NCSF waited until January 22, 1999 -- merely eleven days before the scheduled oral argument date of February 2, 1999 -- to file its motion, and made the motion returnable on the day of oral argument. By filing at such a late date, the NCSF has given the parties little opportunity to respond to its contentions. This alone is a sufficient reason to deny the NCSF's application to file an amicus brief.

10. Further, the NCSF brief has nothing to offer on the merits. First, the NCSF characterizes the People's position as an argument that all sadomasochistic conduct is illegal (Mem. of Law at 2-3) That is an absurd mischaracterization. The People instead have argued that if all the statutory elements of assault are made out, that the victim allegedly consented is not a defense.

11. The NCSF's response to the People's actual position is meritless. As discussed in Point XI of the People's Brief, the plain language of the assault statutes, the structure of the legislative scheme, and the case law compel the conclusion that the Legislature did not intend for consent to be a defense to criminal assault. Nevertheless, the NCSF claims, the People have fallen "asleep at the switch" in making this argument, in that they have failed to notice "a myriad of decisions" in New York cases supposedly rejecting the People's position (Mem. of Law at 3) . Oddly, however, the NCSF cites only two New York cases that were not addressed in the People's brief. See Mercurv Bay Boating Club, Inc. v. San Diego Yacht Club, 150 A.D.2d 82 (lst Dept. 1989), affld, 76 N.Y.2d 256 (1990); Pillow v. Bushnell, 5 Barb. 156 (Sup. Ct. , 3rd Jud. Dist. 1849) And neither of these cases even remotely supports the NCSF's argument that consent is a defense to criminal assault.

12. First, Mercury Bay, on which the NCSF relies heavily (Mem. of Law at 13-17), is completely inapposite. The issue in that case was whether New Zealand violated the terms of the Deed of Gift of the America's Cup by entering a catamaran in the world famous yacht race. See 150 A.D.2d at 82-101. This, obviously, has nothing to do with whether consent is a defense to criminal assault.

13. The NCSF asserts that Mercury Bay supports its position because of language in a concurring opinion by Justice Rubin, exploring, in dicta, the history of sportsmanship. See 150 A.D.2d at 101. In this discussion, which the NCSF fails to identify as coming from a concurring opinion, Justice Rubin noted that if a hockey player were charged with assault for hitting another player with his hockey stick and injuring him, the courts would be required to determine, inter alia, whether the stick "was wielded with the requisite intent to constitute an assault," and whether the "injured player may be deemed to have consented to the use of such tactics by his participation in the game." However, Justice Rubin did not opine as to whether a hockey player actually is deemed to have consented to such an injury. Rather, Justice Rubin merely made the obvious point that, in such a. case, the courts would be required to determine whether consent might be a valid defense. Ana certainly, Justice Rubin never implied that consent might be a defense to a violent sadomasochistic assault, involving the use of dangerous instruments, as occurred here.

14. The NCSFI s reliance on Pillow v. Bu-shnell, 5 Barb. 156 (Sup. Ct. , 3rd Jud. Dist. 1849), is equally unavailing. In Pillow, a woman brought a civil suit against her husband for assault and battery. on appeal, the court held that the trial court had erred by permitting the defendant to compel his wife to testify at trial. Id. at 157-61. The court also noted, in dicta that the trial court correctly charged the jury that it would be a defense to the civil suit if the husband could prove that the wife consented to the assault. Id. at 161.

15. Thus, Pillow merely restated the common law rule that a plaintiff may not recover civil damages for assault and battery if he consented to the tortious conduct. See Restatement (Second) Torts ¤ 892A. This is a far different question from whether consent is a defense in a criminal prosecution. Indeed, the Restatement specifically notes that while consent is a defense to a civil assault action, it is not a defense to a criminal prosecution, see Restatement (Second) Torts ¤ 892C, cmt. a and ill. 1, unless, of course, such a defense is provided by statute. And, as detailed in the People's brief, the New York Penal Law does not provide a consent defense to assault.

16. Finally, at bottom, the NCSF's claim is one not of law but of policy. Despite the clear legal precedent to the contrary, the NCSF believes that consensual, sadomasochistic sex should be protected by the law and the constitution, because it is healthy, "innocuous love-play" (Mem. of Law at 2) . The People take no position on the merits of this argument as a political matter; rather, we merely point out that under the Penal Law, if a sadomasochist engages in conduct that falls within the ambit of the assault statutes (e.g., intentionally causes "physical injury" or "serious physical injury" to another) , he is guilty of assault, regardless of whether the victim "consents." Of course, if the NCSF wishes to decriminalize all sadomasochistic assaults, it should take its arguments to the Legislature. After all, its website boasts that it is a lobbying organization.

WHEREFORE, the People respectfully request that the NCSF's motion to file a Memorandum of Law amicus curiae be denied.

This brief is filed by the National Coalition for Sexual Freedom ("NCSF") as amicus curiae. Defendant Oliver Jovanovic was convicted on April 15, 1998, of kidnaping, assault in the second and third degrees, and of sexual abuse.

NCSF is a not for profit organization, founded to defend the right of American citizens to individual autonomy and privacy in the sexual sphere. The NCSF, in serving these goals, opposes governmental regulation of adult consensual sexual interaction and discrimination based upon sexual orientation. Among the sexual practices which the NCSF seeks to protect is consensual sadomasochistic conduct; conduct which is engaged in by a significant, albeit silent, community. According to the most recent Kinsey Institute Report on Sex, 5 to 10 percent of Americans engage in sadomasochism, a figure which is conservative.(1) These consenting adults are in relationships ranging the romantic gamut from married couples and life partners to casual lovers. Certainly, as the growing mainstream status and public candor of best-selling authors, film makers and recording artists who regularly feature such themes makes clear, the themes of erotic dominance and submission intrigue a substantial portion of the body politic. See, e.g., Anne Rice, Exit to Eden (1985); Crash (David Cronenberg, dir., 1997); Madonna, Sex (1990).

NCSF voices no opinion as to the quantum of evidence below, the credibility of the witnesses or the validity of the charges as applied to appellant. However, the sweeping scope of the trial court's ruling, and the absolutist ban on sadomasochistic behavior between consenting adults urged by the District Attorney in its brief on appeal, threatens the constitutional right to privacy and the freedom of many citizens beyond Oliver Jovanovic. Therefore, NCSF files this amicus brief because the case in question resulted in rulings by the trial court judge, the Honorable William A. Wetzel, which if taken at face value, as indeed the District Attorney herein urges, criminalize this innocuous love-play, engaged in by consenting adults. What is worse, the charge did so in the absence of decisional or statutory authority and in the face of expressly governing case law holding squarely to the contrary. In fact, under the law and Constitution of the State of New York, the right of privacy protects consensual lovers engaging in sexual contact, inclusive of sadomasochistic practices. Moreover, on the statutory issue of the definition of assault, the Court below erroneously misconstrued the decisional law in its assumption that consent, as a general matter, cannot be a defense to a charge of assault.

Finally, the District Attorney for the County of New York has submitted a brief in opposition to the appeal, asserting that "no New York court decision holds that consent is a defense to assault." (District Attorney's Brief at 137). In fact, a myriad of decisions, only some of which are discussed herein, hold squarely to the contrary, suggesting that the District Attorney fell asleep at the switch -- a metaphor whose suggestions of a misdirected and out-of-control train is appropriate in the face of the minimum of 5 percent of the adult population whose right to private consensual sexual conduct of their choice will be steam rolled should the District Attorney prevail in its attempt to criminalize consensual sadomasochistic conduct. Likewise, each and every one of the out-of-jurisdiction decisions cited by the District Attorney to establish the untenable claim that consent is not a defense to assault is inapplicable as they involve holdings that "great bodily injury" or "atrocious assault and battery" are not vitiated by consent, holdings far beyond the global ban of all consensual sadomasochistic love-play the District Attorney campaigns for.

The charge at issue was delivered over objection by the defense; therefore the objection is preserved, and ripe for this Court's review. People v. Crimmins, 36 N.Y.2d 236 (1975). However, NCSF takes no position as to whether the ruling below constituted harmless error or indeed as to the guilt or innocence of Jovanovic.

QUESTIONS PRESENTED

1. Whether the right to privacy guaranteed to all citizens of the State of New York under the Federal and State Constitutions protects the right of consenting adults to engage in erotic play including but not limited to sadomasochistic conduct.

2. Whether the charge to the jury that consent could not form a defense to a charge of assault was error.

STATEMENT OF FACTS

Introduction

On December 5, 1996, Oliver Jovanovic ("appellant") was arrested, and charged with kidnaping, aggravated sexual abuse, sexual abuse, two counts of assault in the second degree, one count of assault in the third degree, and sodomy.

On April 15, 1998, he was acquitted of the sodomy and the aggravated sexual abuse counts, but was convicted of kidnaping, assault in the second and third degrees, and of sexual abuse. On May 21, 1998, appellant was sentenced to 15 years' to life imprisonment.

The charges stemmed from appellant's encounter on November 21, 1996, with a Barnard College student (whose name has been omitted from the published records of the case to safeguard her privacy, and in consideration of which is not employed herein). In their encounter, a date arranged after several e-mail interchanges over several occasions, appellant and the complainant dined at a mutually agreed upon place, and appellant invited the complainant to his apartment, to which it is agreed that she repaired voluntarily.

Once at appellant's apartment, the complainant stated, appellant ordered her to strip, which she did, bound her to his futon, and engaged in pain-inflicting conduct with her, involving the use of a baton and hot candle wax. The complainant maintained that she was kept by appellant at his home against her will, and that he restrained her forcibly for over 20 hours.

At trial, appellant put forward a consent defense to all charges. After the charge conference, in a letter dated April 10, 1998, attorney Frederick L. Souinsky requested that the prosecutor's request for a charge that consent is not a defense to the assault counts be denied, asserting both Constitutional and statutory grounds for the impermissibility of such a charge.

The Charge on Assault and Consent

The Court, over defense objection, nonetheless delivered charges that consent was not a defense to assault.

On the first count of assault in the second degree, the Court instructed the jury that

In order for you to find the defendant guilty of this crime, the People must prove from all the evidence in this case beyond a reasonable doubt both of the following two elements:

One, on or about November 22nd through November 23, 1996, in the County of New York, the defendant caused physical injury to [the victim's] thighs by means of a dangerous instrument, to wit, a baton. Two, that the defendant did so with intent to cause physical injury to her.

Therefore, under this count of the indictment, and the next two counts of the indictment [the second count of assault in the second degree and one count of assault in the third degree], I instruct you it is not a defense to claim that the person assaulted consented to the assault.

Therefore, if you find that the defendant assaulted [the victim] under the two elements that I just instructed you about, you may not consider any claim that she consented to that assault.

(R. at 3421)

The court below charged the jury in substantially similar terms with respect to the second count of assault in the second degree, except that the dangerous instrument alleged to have been used under that count was the candle wax. (R. at 3422-3423).

With respect to assault in the third degree and consent, the Court below charged as follows:

Now, in order for you to find the defendant guilty of this crime, the People must prove from all of the evidence in the case beyond a reasonable doubt both of the following two elements:

One, on or about November 22nd through November 23, 1996, in the County of New York, the defendant caused physical injury to [the victim] by biting her breasts, and two that the defendant did so with intent to cause physical injury to her.

Therefore, if you find that the People have proven beyond a reasonable doubt both of those elements you must then find the defendant guilty of count nine assault in the third degree as charged in this count. It is not a defense to claim that the person assaulted consented to the assault.

(R. 3424-3425).

Conviction and Sentence

On April 15, 1998, appellant was convicted of kidnaping, sex abuse and one count each of assault in the second and third degrees. On May 21, 1998, appellant was sentenced to 15 years' to life imprisonment. This appeal followed.

Sadomasochism and the Scholars

This Court is asked to take judicial notice of the fact that a burgeoning number of scholars have observed the long-term practice of sadomasochistic sexual behaviors in relationships. In addition to the examples cited in the Preliminary Statement, both male and female college students have over the past three decades been documented as evincing an interest in sadomasochism. "Coercive Sexual Fantasies of College Men as Predictors of Self-Reported Likelihood to Rape and Overt Sexual Aggression," V. Greedlinger & D. Byrne, 23 Journ. Sex Research, no. 1 (1987) (concluding that 80% of male students surveyed enjoyed the fantasy of being tied up and forced to have sex by a woman); Different Loving, supra, at 7, 14-18.

Moreover, the empiric and anecdotal studies of those who regularly practice sadomasochistic behavior all emphasize that the hallmarks of sadomasochistic practice are summed up in the tripartite motto "safe, sane, and consensual." Different Loving, supra at 49; "Safety Restrictions," Tim Woodward & Stephanie Jones, Best of Skin Two, pp. 131-141 (1993). SeealsoS and M: Studies in Sadomasochism, T. Weinberg & G.W. Kamel (1983); "An Exploratory-Descriptive Study of a Sadomasochistically Oriented Sample," Charles Moser & Eugene Levitt, 23 Journ. Sex Research, no. 3 pp. 322-337 (1987); Erotic Power: An Exploration of Dominance and Submission, Gini Graham Scott (1983). In short, consent -- full, meaningful, voluntary and informed -- is the distinguishing factor between sadomasochism and abuse in the eyes of those who practice the former, and who eschew the latter. By its jury charge, the Court below has sweepingly obviated this distinction, in defiance both of common sense and of common (and Constitutional) law, and criminalized consensual sexual conduct.

ARGUMENT

POINT I

UNDER THE FEDERAL AND STATE CONSTITUTIONS,

PRIVATE, NONCOMMERCIAL CONSENSUAL SEXUAL

CONDUCT MAY NOT BE CRIMINALIZED

The United States Constitution, and, independently, the Constitution of New York State, as the Court of Appeals has recognized, extends the right of privacy to strike down provisions of the Penal Law which purport to criminalize consensual private sexual conduct. People v. Onofre, 51 N.Y.2d 476 (1980) (striking statutory proscription of consensual sodomy or deviate sexual intercourse between unmarried persons). In Onofre, the Court held that the right to privacy is "a right of independence in making certain kinds of important decisions, with a concomitant right to conduct oneself in accordance with those decisions, undeterred by government restraint." 51 N.Y.2d at 485. Finding guidance in the Supreme Court of the United State's decisions, including those in Loving v. Virginia, 388 U.S. 1 (1967) (invalidating state statutory ban on inter-racial marriage), Griswold v. Connecticut, 381 U.S. 479 (1965) (striking state statute banning sale of contraceptives as impermissibly invasive of "the sacred precincts of the marriage bed"), and Stanley v. Georgia, 394 U.S. 557 (1969) (voiding prosecution for possession of obscene materials in the home), the Court in Onofre carved out a zone of personal autonomy:

In light of these decisions, protecting under the cloak of the right to privacy individual decisions as to indulgence in acts of sexual intimacy by unmarried persons and as to satisfaction of sexual desires by resort to material condemned as obscene by community standards when done in a cloistered setting, no rational basis appears from excluding from the same protection decisions such as those made by defendants before us to seek sexual gratification from what at least once was commonly referred to as "deviate" conduct so long as the decisions are voluntarily made by adults in a non-commercial private setting.

51 N.Y.2d at 488.

This decision by the Court of Appeals was reaffirmed three years later in People v. Uplinger, 58 N.Y.2d 936, 938 (1983), and remains "firmly rooted in our law." John C. v. Martha A., 156 Misc.2d 222, 592 N.Y.S.2d 229, 232 (City Ct. N.Y. Co. 1992) ("[p]rivate, consensual adult sexual conduct is none of a court's business unless it impinges upon a strong countervailing public policy (e.g., commercialized sexual activity), or another relationship (e.g., adultery)"). SeealsoPeople v. Anonymous Female, 143 Misc.2d 197 (City Ct. Buffalo 1989) (finding that act of oral sodomy, performed under conditions leading to reasonable expectation of privacy, could not constitutionally be proscribed even if overseen; relying on Onofre); People v. Thousand, 121 Misc.2d 937 (City Ct. Rochester 1983).(2)

Under both the Federal and State Constitutions, therefore, it is clear that private consensual sexual conduct among adults is presumptively protected, in the absence of a serious public policy underlying regulation. What is further clear is that sadomasochistic practices fall within the definition of sexual practices so protected; the Court of Appeals in Onofre held that the ambit of privacy includes "deviate" sexual conduct, not merely sexual conduct enjoyed by the mainstream of citizens. Onofre, 51 N.Y.2d at 488. The Legislature has, in the general obscenity section, included sadism and masochism among the sexual subjects which, if defined in a manner pruriently appealing to the interest in sex, and depicted without redeeming social value, may be prosecuted and proscribed. Penal Law ¤ 235.00. Likewise, in specifying materials defined as "indecent" and thus unfit for dissemination for children, the Legislature included what it somewhat harshly terms "sadomasochistic abuse" (which it defines as "flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or sexually restrained on the part of one so clothed").(3) Penal Law ¤ 235.20(5). In short, the sexual nature of sadomasochism is conceded.(4) That sadomasochism is within the protections of Onofre therefore cannot be doubted. Accordingly, the Court below was in error to grant the prosecution request to charge that voluntary consent on the part of the complainant was not a defense to the charges against appellant.

The District Attorney gives short shrift to Onofre and completely ignores its progeny, choosing instead to rely on cases from other jurisdictions, cases which cannot be viewed as having even persuasive authority as to the scope of protections guaranteed by the State Constitution. In addressing Onofre, the District Attorney argues solely that the specific conduct engaged in by defendant is not protected by Onofre, conduct the District Attorney describes as non-consensual. (District Attorney's Brief at 140-1). The District Attorney never addresses whether consensual sadomasochistic conduct is covered by Onofre and protected by the State Constitution. The District Attorney's grasp on the Federal Constitution seems equally tenuous, as they incorrectly cite Mishkin v. New York, 383 U.S. 502 (1966), for the proposition that "publications depicting sadomasochism are not protected by the First Amendment." (District

Attorney's Brief at 140). To the contrary, Mishkin holds that publications depicting sadomasochism are held to the same standard as those depicting heterosexual sexual conduct. Mishkin, 383 U.S. at 508.

The defendant argued in Mishkin that his publications, which targeted fetishes and sadomasochism, could not be obscene because only a minority of the population would find them erotic and therefore could not satisfy the Prurient-Appeal requirement of the Roth test for obscenity. Rather than holding that sadomasochistic publications are de jure obscene, as the District Attorney implies, the Court disposes of the defendant's argument by holding that where a publication targets a specific audience, and not the public at large, the Prurient-Appeal requirement may be satisfied if the publication appeals to the prurient interest of its target audience. Mishkin, 398 U.S. at 508.

The District Attorney similarly mis-cites Ward v. Illinois, 431 U.S. 767 (1977). Ward did not remove sadomasochistic publications from the ambit of the First Amendment, it merely reaffirms Mishkin in light of intervening obscenity cases which the defendant argued prohibited the proscription of sadomasochistic publications. The defendant argued that in light of the intervening case of Miller v. California, 413 U.S. 15 (1973), sadomasochistic publications could not be proscribed. The explicit holding of the Ward court at issue is: "If the Mishkin publications remain unprotected [in light of Miller], surely those before us today deal with a category of sexual conduct which, if obscenely described, may be proscribed by state law. Ward, 431 U.S. at 773 (emphasis added). The emphasized section underscores that sadomasochistic publications are not automatically unprotected by the First Amendment.

Contrary to the District Attorney's presumption, sadomasochistic publications are neither de facto nor de jure obscene, but may be found to be obscene if they satisfy the requirements of the obscenity tests provided by the Supreme Court; the same tests non-sadomasochistic publications are held to. While the District Attorney may be content to ban everything from Playboy to Jean-Jacques Roseau's Confessions, the Supreme Court fortunately is not so inclined.

The District Attorney cites two out-of-jurisdiction cases for the proposition that "there is no constitutional right to engage in sadomasochistic abuse." (District Attorney's Brief at 140). The first case, State v. Collier, 372N.W.2d 303 (Iowa App. 1985), does not address Constitutional issues at all, but instead turns solely on state statutory grounds. The second case, Commonwealth v. Appleby, 402 N.E.2d 1051 (Mass 1980), does not support the all-out ban on sadomasochistic conduct urged by the District Attorney, but rather argues for a balancing of a citizens right to sexual privacy with the State's interest in protecting its citizens' health. Finally, in both cases, the decision turned on the quantum of physical harm. Were this Court to follow these inapplicable decisions, a balancing of the respective interests would than result, rather than the judicially legislation of a blanket ban on sadomasochism called for by the District Attorney.

POINT II

CONSENT IS A DEFENSE TO A CRIMINAL CHARGE OF ASSAULT

The District Attorney argue in their opposition papers that the law in New York State supports the lower court's charge that consent does not create a defense to the offense of assault. The District Attorney supports this argument through citation to California and other jurisdiction's decisions, a gambit which is more ingenious than ingenuous in the face of the unbroken chain of decisions, from 1849 to the present day, in which the courts of this State have held precisely to the contrary. In Pillow v. Bushnell, 5 Barb. 156, 161 (Sup. Ct. 1849), the Court squarely held that "[i]f the act complained of as an assault and battery was committed by the consent and request of the wife, it formed an entire defense." A myriad of cases from Pillow to the present have reaffirmed this rule. Indeed, in 1989, this Court relied upon the doctrine, qualifying its applicability to the extent that the actor seeking to invoke the defense must act within the scope of the consent. Mercury Bay Boating Club, Inc. v. San Diego Yacht Club, 150 A.D.2d 82, 545 N.Y.S.2d 693, 705 (1st Dep't 1989) (noting distinction between customs and usages in sports and legal doctrines, employing the example of a hockey player struck by a stick in play, who "may be deemed to have consented to the use of such tactics by his participation in the game.") (citingPeople v. Freer, 86 Misc.2d 280, 381 N.Y.S.2d 976 (Dist. Ct. Suffolk Co. 1976) (holding that a punch thrown in course of tackle fell within implied consent to tackling in football game, but that a punch thrown afterwards, when play had stopped, did not)). SeealsoPeople v. Lenti, 44 Misc.2d 118, 123-124 (Nassau Co. Ct. 1964) (where injuries inflicted upon participants in fraternity "hell night" were plainly beyond the scope of implied consent, the consent defense is not applicable).

That this unbroken line of precedent remains valid is clear from not only Mercury Bay Boating Club, Inc., supra, decided less than 10 years ago, but from the lack of contrary authority within the jurisdiction. To the extent that the District Attorney, relying on out-of jurisdiction authority, claims a new "trend" away from the consent defense among the State courts, the citations omit the most recent case, Boldt v. Boldt, 97-DR-0441, CA A99286 (Ct. App., Oregon, July 18, 1998) (slip op. attached), in which, although not reaching the issue, the Court of Appeals of the State of Oregon stated that it was "not prepared to declare that whenever competent adults agree to engage in conduct that involves inflicting pain, the behavior necessarily constitutes abuse." The Oregon Court of Appeals echoed the decision enunciated 50 years ago in People v. Steinberg, 73 N.Y.S.2d 475, 479 (City Ct. N.Y. Co. 1947): "It is true that as a rule the consent of the prosecutor, if intelligently given, is a good defense in assault. We have examples in amiable contests, in assaults arising from voluntary sexual relations, and in tumultuous frolics." Seealso, Van Vooren v. Cook, 273 App. Div. 88 (4th Dep't 1947) (same as to general rule; citing cases).

The out-of-jurisdiction decisions cited by the District Attorney are inapplicable as they involve holdings that conduct which "creates an unreasonable risk of severe injury," Collier, 372 N.W.2d at 307, or of "severely or mortally injuring another," People v. Samuels, 58 Cal.Rptr. 439, 447 (Cal.App. 1967), cert.denied, 390 U.S. 1024 (1968), are not vitiated by consent; they do not support the global ban of all consensual sadomasochistic love-play the District Attorney campaigns for. (District Attorney's Brief at 137-8). The decisions turned on the quantum of physical harm and lack of valid consent, not sadomasochism. SeeAppleby, 402 N.E.2d at 1060 (Court notes that the case history involved severe beatings, including one in which the defendant fractured the victim's kneecap); Commonwealth v. Farrell, 78 N.E.2d 697, 704 (Mass. 1948)(assault included severe, permanently disfiguring burns which required months to heal). The out-of-jurisdiction cases cited do not call for a ban on sadomasochism, but rather hold that there is a level of injury beyond which one cannot consent, implying that there is a level of injury that one can consent to without risking prosecution.

Instead of citing New York case law, the District Attorney provides an essay on statutory interpretation, relying on the "structure of the statutory scheme" to conclude -- erroneously -- that since the Legislature did not explicitly provide a consent defense to assault, there is no consent defense to assault. (District Attorney's Brief at 136). The District Attorney ignores, however, that for over a hundred years prior to the most recent reenactment of the Penal Law, which was in 1965, the Courts of the State of New York repeatedly held that consent is a defense to assault. That the Legislature choose not to address the issue when reenacting the assault statutes evinces, if anything, support for the courts' interpretation. It is not surprising, therefore, that courts since 1965 have also held that consent is a defense to assault. SeeMercury Bay Boating, 545 N.Y.S.2d at 705; Freer, 381 N.Y.S.2d at 978.

The District Attorney dismisses the cases cited by the defendant for the proposition that consent is a defense to assault as "dicta in a handful of antiquated, lower-court cases" but was forced to grudgingly admit that "[i]n two very old cases, lower courts have mused in dicta that consent may be a defense to assaults arising from 'tumultuous frolics' and 'voluntary sexual relations.'" (District Attorney's Brief at 139, citing Defendant's Brief at 125-6). None of the cases cited by the defense or the NCSF, however, has been overruled and at least one of those "antiquated" cases has been favorably cited by this Court within the past decade. SeeMercury Bay Boating, 543 N.Y.S.2d at 705 (favorably citing Freer which held that participants in sporting events consent to certain acts of violence). In the few New York cases cited by the District Attorney for the opposite proposition, that consent was not a defense to assault, all but one involve minors who, by definition, are not legally capable of giving valid consent. (District Attorney's Brief at 139, fn *, discussing People v. Gibson, 232 N.Y. 458, 462 (1922); People v. Malark, 283 A.D.263 (3rd Dept. 1954); Singer v. People, 13 Hun. 418, 420 (1st Dept.), aff'd, 75 N.Y. 608 (1878); Hays v. People, 1 Hill. 351, 352 (Sup. Ct. 1841)). The remaining case involved illegal street fighting and turned on the court's holding a party cannot consent to an illegal act. (District Attorney's Brief at 139, fn *, discussing People ex rel. Knight v. Eames, 115 N.Y.S.2d 248, 250 (Broome Co. 1952)).

The District Attorney ignores the far reaching effects of striking down the consent defense to assault, which include the criminalization of many sporting events, many forms of non-sadomasochistic consensual sexual contact, and such cultural choices as body piercing. The District Attorney admits that "certain sports that involve physical contact, such as boxing, wrestling, and football, are played regularly and are not regarded as being criminal 'assaults.'"(District Attorney's Brief at 138, fn **). Ignoring this Court's holding in Mercury Bay Boating, and citing no cases of its own in support, the District Attorney argues that the reason "athletes are not prosecuted for assault has nothing to do with the fact that the 'victim' consents." (District Attorney's Brief at 138, fn **). Instead, the District Attorney argues that boxers and wrestlers are not prosecuted for assault because the sports are highly regulated and therefore "sanctioned" by the Legislature. Whatever validity this argument has, it in no way invalidates the consent defense, especially considering that only a small percentage of the contact sports in New York are regulated. It also should be noted that, according to the District Attorney's own view of statutory interpretation, had the Legislature intended to exempt boxing and wrestling from the assault statutes because of the regulatory scheme, it would have explicitly done so. The District Attorney, however, fails to provide a statutory cite to this exemption.

The District Attorney attempts to distinguish football by arguing that "football players may not be convicted of assault because, while they engage in physical contact, they do not intend to cause physical injury to their opponents, and criminal intent is an element of all degrees of criminal assault." (District Attorney's Brief at 138, fn **). Such an argument applies equally well to sadomasochism, whose goal is not injury but mutual personal gratification. Participants in both sporting events and sadomasochism are aware that their conduct may create a risk of injury. But the District Attorney would exempt one from the assault statutes and not the other. The District Attorney makes no attempt to explain why other consensual assaults, such as body piercing, whose goal always involves bodily injury, are not prosecuted.

As the Court in Steinberg made clear, consensual sexual conduct, including sadomasochistic conduct, are not appropriately grist for the criminal justice system. Unless this Court, absent any argument save for the District Attorney's evident disapproval of the sadomasochistic lifestyle, is willing to abandon precedent dating back 150 years, precedent which has been recently followed, and criminalize activity ranging from contact sports to body piercing, as well as all but the tamest sexual contact - all without any legislative enactment - the charge must be declared erroneous.

The consequences of such a declaration the NCSF confidently leaves in the hands of this Court. Taking no position on the ultimate disposition of the case, the NCSF does not opine as to whether the record supports a finding that the error was harmless, or that appellant exceeded any consent obtained. The NCSF does assert that the charge delivered by the Court below effectively criminalizes consensual conduct in a manner which will expose adults practicing consensual sadomasochism to prosecution. The effect of such a ruling would be to greatly expand the discretion of prosecuting attorneys in a manner which they have shown themselves all too willing to abuse; the target of their baseless legal theory, notably, is not any one of the powerful and wealthy sports franchises engaged in contact sports such as boxing, hockey, or football, in which significant injury regularly occurs and sometimes even death takes place. Rather, the District Attorney targets a sexual minority, whose behavior is so misperceived as to be described in the body of one statute as "bizarre" (See Penal Law 235.20(5)), for what is in essence a harmless form of intimacy, behavior which rarely results in serious injury and for which knowing, voluntary consent is a prerequisite. The social stigma attached to sadomasochism, and the stigma of arrest, render those targeted especially vulnerable to prosecution; in usurping the privacy interests and eliminating the age-old consent defense patently available in such cases, the District Attorney, as was the case in Anonymous Female, merely "attempt to avoid the effects of [adverse decisional law] and to take advantage of the strong likelihood that arrested defendants -- male and female -- will, for obvious reasons, seldom go to trial, seldom test the law." 539 N.Y.S.2d at 870. The charge request in this case is nothing short of a license to bully and intimidate a sexual minority based on their private consensual conduct, and must not be allowed.

CONCLUSION

FOR THE REASONS ABOVE GIVEN, THIS COURT SHOULD DEEM THE CHARGE COMPLAINED OF TO HAVE CONSTITUTED ERROR, AND TO RENDER JUDGMENT IN ACCORDANCE WITH THAT FINDING

Dated: New York, New York

January __, 1999

Respectfully submitted,

MICHAEL THOMAS FOIS

Attorney for Amicus Curiae

National Coalition for Sexual Freedom

381 Manhattan Ave.

Brooklyn, New York 11211

(212) 353-8984

1. New Report on Sex, The Kinsey Institute (1990). This is nothing new; a substantial segment of the population has engaged in such behavior for as long as such data has been collected. SeeSexual Behavior in the 1970's, M. Hunt (1974) (In survey of 2,000 respondents, 10.9% of men and 6.7% of women had obtained pleasure from an act of domination and submission); A Research in Marriage, G.V. Hamilton ( 1929) (survey found that 28% of men and 29% of women admitted they derived "pleasurable thrills" from the infliction of some form of pain upon themselves). SeeDifferent Loving: An Exploration of the World of Sexual Dominance and Submission, William D. Brame & Gloria Brame (1993); "Manifest Sadomasochism of Males: Results of an Empirical Study," Andreas Spengler, Archives of Sexual Behavior, vol. 6, pp. 441-56 (1977)

2. The fact that at least two of these decisions post-date the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and that the Court of Appeals has repeatedly made clear that the State Constitution provides a greater quantum of protection for privacy than does the Federal Constitution, renders it unnecessary to examine what impact, if any, Bowers has on Onofre.SeePeople v. Scott, 79 N.Y.2d 474 (1992). Notably, the continuing validity of Onofre is conceded by the District Attorney, who merely urges that this case falls outside of the rule therein enshrined.

3. Notably, this definition would include a film clasic such as Mutiny on the Bounty while a film in which a naked person is flogged by one in a business suit would appear to be exempted.

4. Although the statutes recognize the sexual nature of sadomasochistic conduct, professional sadomasochism is not automatically proscibed by the prostitution statute, as the prostitution statute is more strict in its approach and specifically limits its scope to a few acts defined as "sexual conduct," the exclusion of sadomasochism from which has led at least one court to conclude that a professional dominatrix who did not engage in a sex act enunciated in the statute cannot be found guilty of prostitution. People v. Georgia A., 163 Misc.2d 634 (Crim. Ct. Kings Co. 1994).

Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and states

under penalty of perjury, the following:

I represent the National Coalition for Sexual Freedom ("NCSF") and filethis affirmation in support of the NCSF's request for leave to filea Memorandum of Law as amicus citriae in the above-captioned matter.

2. The NCSF is a not for profit organization, founded to defend the right of

American citizens to individual autonomy and privacy in the sexual sphere. The NCSF, in ser-vin- these ooals, opposes Governmental regulation of adult consensual sexual interaction and discrimination based upon sexual orientation. Among the sexual practices which the NCSF seeks to protect is consensual sadomasochistic conduct; conduct which is engaged in by a significant, albeit silent, community.

3. On July 7, 1999, the NCSF received the section of the District Attorney's Brief in

Upon the annexed Affirmation of Michael Thomas Fois, and all the pleadings and papers had herein, the undersigned, counsel for the National Coalition for Sexual Freedom, respectfully moves this Court for leave to file the accompanying draft Memorandum of Law as amicus curiae.

cc: DIARMUID M. WHITE
Attorney for Defendant-Appellant
148 East 78th Street
New York, New York 10021
ROBERT MORGENTHAU
District Attorney for the
County of New York
attn: Mark Dwyer
Assistant District Attorney
Appeals Bureau
One Hogan Place
New York, New York 10013

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

BARBARA NITKE, THE NATIONAL
COALITION FOR SEXUAL FREEDOM, and
THE NATIONAL COALITION FOR
SEXUAL FREEDOM FOUNDATION,
Plaintiffs,

-against-

JOHN ASHCROFT,
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA, and
THE UNITED STATES OF AMERICA;
Defendants.

01 Civ. 11476 (RMB)
PLAINTIFFS' RESPONSES
AND OBJECTIONS
TO DEFENDANTS' FIRST
SET OF INTERROGATORIES
AND REQUEST FOR
DOCUMENTS

-------------------------------------------------------------------X

Plaintiffs Barbara Nitke ("Nitke") and the National Coalition for Sexual Freedom ("NCSF"), by their attorney, John F. Wirenius hereby respond and object to Defendants' First Set of Interrogatories and Request for Documents (collectively, the "Requests") as follows:

GENERAL OBJECTION AND RESERVATIONS

Plaintiffs object to Defendants' Requests to the extent they purport to require the disclosure of documents and information beyond the scope of that mandated under the Federal Rules of Civil Procedure and other applicable law.

Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information that are exempt from discovery under the attorney-client or work product privileges, or that are otherwise privileged or protected from disclosure.

Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information that are not relevant to the subject matter of this litigation and are not reasonably calculated to lead to the discovery of admissible evidence, that cannot be produced without undue burden to Plaintiffs, and/or that require an unreasonable investigation on the part of Plaintiffs in order to be produced.

Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information already in the possession of, publicly available to, or readily obtainable to Defendants and their counsel, on the ground that with respect to such production, Defendants' Requests are thereby rendered unduly burdensome.

Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information in the possession, custody or control of entities other than Plaintiffs, on the ground that such demanded production is beyond the scope of Rule 34 of the Federal Rules of Civil Procedure and other applicable rules and law.

Plaintiffs object to Defendants Requests to the extent that they seek the production of identic documents and information more than once, on the ground that such production is unduly burdensome. Where documents are responsive to more than one request, an effort has een made to avoid duplicative production.

Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information that implicates the privacy interests and rights of freedom of association of non-parties to this litigation, and of members of plaintiff NCSF, pursuant to the First Amendment to the United States Constitution, other applicable statutory law (including but not limited to, the Privacy Act, 5 U.S.C. §552a), as applied in decisions including but not limited to NAACP v. Alabama, 357 U.S. 449, 462-463 (1958); Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2003).

Plaintiffs object to Defendants' interrogatories in toto as violative of Local Rule 33.3 of the United States District Court of the Southern District of New York.

Plaintiffs expressly reserve the right to supplement, clarify, revise or correct any or all of the responses herein at any time. By making any response to Defendants' Requests. Plaintiffs do not waive, and hereby expressly reserve, the right to assert any and all objections as to the admissibility of such responses into evidence at the time of trial of this action, or in any other proceeding, on any and all grounds, including but not limited to, competency, relevance, materiality and privilege. Further, Plaintiffs provide the responses herein without in any manner express or implied admitting that the items in Defendants' Requests or in any response thereto is relevant or material to the subject matter of this action.

SPECIFIC INTERROGATORIES RESPONSES AND OBJECTIONS

Interrogatory No. 1 Identify all persons with knowledge and information relevant to the subject matter of this action, including but not limited to:

All witnesses or other persons with knowledge or information regarding the alleged infringement of plaintiffs' First Amendment rights;

RESPONSE: Plaintiffs object to this interrogatory as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object to this interrogatory on the ground that it calls for information outside of the possession, custody or control of the Plaintiffs, and publicly available, or in the possession, custody or control of the Defendants.

Claim their potential Internet-based speech has been chilled by the threat of prosecution for obscenity;

RESPONSE: Plaintiffs object to this interrogatory as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. This interrogatory is further objected to on the ground that it calls for the production of information protected by the constitutional right to freely associate for lawful purposes without fear of reprisal or public exposure at the hands of the Government. NAACP v. Alabama, 357 U.S. 449 (1958); Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2003); see also Conroy v. New York State Department of Correctional Services, 333 F.3d 88, 95 (2d Cir. 2003) (complainants need not expose themselves to injury to challenge injurious policy; ADA claim).

Notwithstanding these objections, members of NCSF or its constituent organizations whose speech has been chilled by their concerns that they could be subject to prosecution were they to publish materials via the Internet which they desire to publish, and whom Plaintiffs anticipate calling as witnesses at trial include:

Barbara Nitke

Michele Serchuk

"Amity Harris"

Michele Buchanan

Jack McGeorge

The Eulenspiegel Society (by its webmaster, Dov Hechtman)

Tristan Taormino

Theresa Reed

Carol Queen

Females Investigating Sexual Terrain ("FIST")

Has ever been arrested, indicted, charged or otherwise prosecuted for violating any obscenity law on account of the transmission of allegedly obscene material over the Internet, and, for each such member, identify the material alleged to have been obscene.

RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra. This Interrogatory is further objected to on the ground that is overbroad, unduly burdensome, and not reasonably likely to lead to the production of admissible evidence. In addition, this interrogatory is further objected to on the ground that it seeks information and/or documents revealing information privileged under the Fifth Amendment to the United States Constitution, and of the constitutional and statutory right to privacy.

Has been notified that the member is or ever has been a target or subject of any criminal investigation for violating any obscenity law on account of the transmission of obscene material over the Internet, and, for each such member, identify the material alleged to have been obscene;

Has refrained from transmitting any material over the Internet because of any actual or perceived threat of prosecution for violating any obscenity law and, for each such member, identify the material that was not transmitted.

Any person known to plaintiffs, other than persons identified in response to Interrogatory 1.b, who has ever refrained from transmitting any material over the Internet because of any actual or perceived threat of prosecution under any obscenity law, and for each such person, identify the material that was not transmitted.

RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra. In addition to the persons identified in response to interrogatory 1.b.i. supra, Plaintiffs at present anticipate calling as witnesses the following individuals responsive to this interrogatory:

Deborah Christian

Patrick Califia

Deborah Addington

Nina Hartley

Gloria Brame

Candida Royalle

All witnesses or other persons who created or developed, assisted in the creation or development of, have knowledge or information regarding the creation or development of Internet sites on behalf of plaintiff Nitke; RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra. This interrogatory is further objected to on the ground that it is overbroad, unduly burdensome, and not reasonably likely to lead to the production of admissible evidence

All witnesses or other persons who created or developed, assisted in the creation or development of, have knowledge or information regarding the creation or development of Internet sites on behalf of each member of plaintiff NCSF identified in plaintiffs' response to Interrogatory No. 1.b and set forth individually for each member so identified; RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.d, supra.

Any witness plaintiffs intend to call at trial regarding:

The total amount of speech implicated by the Communications Decency Act ("CDA");

RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, in addition to those identified in response to interrogatory number 1.b.1 and 1.c, supra:

Jeffrey J. Douglas, Esq.

Linda Williams, Phd.

Arthur C. Danto

Dov Hechtman

Glenda Ryder

Susan Wright

Leigha Fleming

Robert Thomas

Carleen Thomas

The total amount of material not protected by the "serious societal value" prong of the test for obscenity enunciated in Milller v. California, 413 U.S. 15 (1973);

RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, in addition to those identified in response to interrogatory number 1.b.1 and 1.c, supra:

Jeffrey J. Douglas, Esq.

Linda Williams, Phd.

Arthur C. Danto

A.D. Coleman

Dov Hechtman

Robert Thomas

Carleen Thomas

Charles Moser, M.D.

David Steinberg

Katherine Ramsland, Phd.

Community standards in various localities regarding whether material appeals to the prurient interest;

RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, in addition to those identified in response to interrogatory number 1.b.1 and 1.c, supra:

Jeffrey J. Douglas, Esq.

Arthur C. Danto

Susan Wright

Barbara Nitke

Howard Rheingold

Leigha Fleming

Robert Thomas

Carleen Thomas

Community standards in various localities regarding whether material depicts or describes sexual conduct in a patently offensive way;

RESPONSE: See Response to Interrogatory No 1.f.iii

The technological or practical possibility of limiting the geographic distribution of online materials;

RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, responsive to this Interrogatory:

Barbara Nitke

Bennet Laurie

Seth Finkelstein

Howard Rheingold

Amity Harris

The protection offered by the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses responsive to this Interrogatory:

Barbara Nitke

Bennet Laurie

Seth Finkelstein

Jeffrey J. Douglas

Amity Harris

The technological or practical possibility of implementing the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

RESPONSE: See Response to Interrogatory No 1.f.vi

The potential deterrent effect on Internet users of the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

RESPONSE: See Response to Interrogatory No 1.f.vi. In addition to the witnesses therein designated plaintiffs at present intend to call the following witnesses:

Charles Moser

Jack McGeorge

Susan Wright

Nina Hartley

Amity Harris

Theresa Reed

Leigha Fleming

Carol Queen

Eva Norvind

Betty Dodson

Gloria Brame

Michele Buchanan

Any other individual likely to have discoverable information that plaintiffs may use to support their claims;

RESPONSE: Plaintiffs object to this interrogatory as overly broad, unduly burdensome, and premature , especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses with respect to the issue of social value of sexually explicit speech, especially as to speech concerning non-mainstream sexual practices:

Linda Williams

Arthur C. Danto

A.D. Coleman

Candida Royalle

Barbara Nitke

Amity Harris

Patrick Califia

Katherine Ramsland

Charles Moser, M.D.

Gloria Brame

Carol Queen

Nina Hartley

Betty Dodson

Deborah Addington

Eva Norvind

Tristan Taormino

Glenda Ryder

David Steinberg

Michael Rosen

Janet Hardy

Deborah Cristian

Michele Serchuk

Michele Buchanan

Theresa Reed

Additionally, with respect to the issue of the importance of anonymity to those accessing or publishing materials online, and the potential social costs of becoming publicly known as member of a community interested in non-mainstream sexual practices/expression, Plaintiffs at present intend to call the following witnesses:

Charles Moser

Jack McGeorge

Amity Harris

Betty Dodson

Carol Queen

Katherine Ramsland

Eva Norvind

Gloria Brame

Nina Hartley

Susan Wright

Leigha Fleming

Any other individual not listed above with knowledge or information concerning the subject matter of this action. RESPONSE: See Response to Interrogatory No. 1.g, supra.

2. Identify each and every expert witness that plaintiffs will call to testify at trial, and for each expert state:

His or her field of speciality or expertise;

Any sub-specialities of the witness within his or her field of expertise;

The subject matter on which he or she is expected to testify;

All opinions that he or she is expected to express and the basis and reasons for such opinions;

The data or other information he or she considered in in forming his or her opinion(s);

Any exhibits to be used as a summary of or support of his or her opinion(s);

His or her qualifications, including a list of all publication he or she authored within 10 years preceding the date of this request;

The compensation paid and to be paid to him or her for the study and the testimony; and

All other cases in which he or she has testified as an expert at trial or by deposition within four years preceding the date of this request.

RESPONSE: Plaintiffs object to this interrogatory as overly broad, unduly burdensome, and premature , especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following expert witnesses:

Arthur C. Danto

Linda Williams

A.D. Coleman

Katherine Ramsland

Bennet Laurie

Seth Finkelstein

Jeffrey J. Douglas

Gloria Brame

Charles Moser

Howard Rheingold

Candida Royalle

David Steinberg

Susan Wright

Michele Buchanan

By agreement between the parties, the affidavits of Arthur C. Danto, Howard Rheingold, and Candida Royalle submitted by Plaintiffs in opposition to the motion to dismiss have been accepted as expert reports. That of Susan Wright is supplemented herewith by a second report addressing the other issues as to which Plaintiffs will adduce her testimony.

The expert reports of the individuals above listed, submitted under separate cover, respond to the various subparts of the above interrogatory, to the extent said interrogatory is proper and/or seeks information discoverable at this time.

SPECIFIC REQUESTS FOR DOCUMENTS RESPONSES AND OBJECTIONS

All documents, data compilations, and tangible things that plaintiffs may use to support their claims.

RESPONSE: Plaintiffs object to this request as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object to this request to the extent that it calls for information outside of the possession, custody or control of the Plaintiffs, and publicly available, or in the possession, custody or control of the Defendants. Finally, Plaintiffs object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response.

All photographs, images, and other depictions or documents that plaintiff Nitke desires to publish on the Internet, but has refrained from publishing on the internet due to any actual or perceived threat of prosecution for obscenity.

RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence.

All photographs, images and other depiction or documents that each member of plaintiff NCSF identified in plaintiffs response to Interrogatory No. 1.b, and set forth individually for each such member so identified, desires to publish on the Internet, but has refrained from publishing on the Internet due to any actual or perceived threat of prosecution for obscenity.

RESPONSE: Plaintiffs refer Defendants to the objection and response to Interrogatory No. 1.b for their objections and response to the instant request. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3, and is in any event overbroad, unduly burdensome, not calculated to lead to the discovery of admissible evidence.

Notwithstanding these objections, Plaintiffs will provide under separate cover responsive documents to the extent that such exist and are not publicly available.

All photographs, images, and other depictions authored or created by plaintiff Nitke that have been found by a court or jury to be obscene.

RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence.

Notwithstanding these objections, Plaintiffs are unaware of the existence of any responsive documents to this request.

All photographs, images or other depictions or documents of which plaintiffs are aware lack serious literary, artistic, political or scientific value in all communities and are considered obscene in some communities but not in others.

RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3, and further object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response.

Notwithstanding these objections, Plaintiffs refer Defendants to the accompanying expert report of Jeffrey J. Douglas, to the affidavits previously submitted of Robert and Carleen Thomas, and the underlying court documents and evidence referred to therein, which is in the possession, custody or control of Defendants, and to the affidavit previously submitted of Candida Royalle, and the publicly available documents referred to therein, which were authored by and published by Defendant the United States of America, and are therefore within its possession, custody and control.

All contracts, agreements, or other documents describing the relationship between plaintiff Nitke and any Internet Service Providers through which Nitke publishes her Internet sites.

RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence.

All contracts, agreements, or other documents describing the relationship between each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and set forth individually for each such member so identified, and any Internet Service Providers through which each such member publishes his/her Internet sites.

RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

All documents describing or otherwise demonstrating income received or sales of goods and services or otherwise from Internet sites operated or published by plaintiff Nitke.

RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

All documents describing or otherwise demonstrating income received or sales of goods and services or otherwise from Internet sites operated or published by each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and set forth individually for each such member so identified, and any Internet Service Providers through which each such member publishes his/her Internet sites.

RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

All documents describing or otherwise demonstrating expenses incurred in publishing or maintaining an Internet site by plaintiff Nitke.

RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

All documents describing or otherwise demonstrating expenses incurred in publishing or maintaining an Internet site by plaintiff Nitke.

RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

All documents reflecting any effort undertaken or expense incurred by plaintiff Nitke or any NCSF member identified in response to interrogatory No. 1.b to restrict, by geography or otherwise, the community that would receive transmissions over the Internet from Nitke or such member.

RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

Notwithstanding these objections, no responsive such documents exist within the possession, custody or control of plaintiff Nitke.

All documents concerning the creation or development of any Internet site published, created, or maintained by each member of plaintiff NCSF identified in plaintiffs' response to Interrogatories No. 1.b, and set forth individually for each such member so identified plaintiff Nitke.

RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

All documents concerning the creation or development of any Internet site published, created, or maintained by each member of plaintiff NCSF identified in plaintiffs' response to Interrogatories No. 1.b, and set forth individually for each such member so identified.

RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

All prior or current versions of the Internet site or sites maintained by plaintiff Nitke, and all photographs, images, depictions or other documents published on such Internet sites since their inception.

RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

All prior or current versions of the Internet site or sites maintained by each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and all photographs, images, depictions or other documents published on such Internet sites since their inception.

RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

All correspondence or other documents from any law enforcement or prosecutorial official regarding the investigation, prosecution, or potential prosecution of plaintiff Nitke for any offense related to obscenity.

RESPONSE: Plaintiffs object to this request as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object to this request to the extent that it calls for information outside of the possession, custody or control of the Plaintiffs, and publicly available, or in the possession, custody or control of the Defendants.

Notwithstanding these objections, no responsive documents are in the possession, custody or control of plaintiff Nitke.

All correspondence or other documents from any law enforcement or prosecutorial official regarding the investigation, prosecution, or potential prosecution of each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and set forth individually for each such member so identified, for any offense related to obscenity.

RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

All documents plaintiffs intend to introduce into evidence at trial regarding:

The total amount of speech implicated by the Communications Decency Act;

The total amount material not protected by the "serious societal value" prong of the test for obscenity enunciated in Miller v. California, 413 U.S. 15 (1973).

Community standards in various localities regarding whether material appeals to the prurient interest;

Community standards in various localities regarding whether material depicts or describes sexual conduct in a patently offensive way;

The technical or practical possibility of limiting the geographic distribution of online materials;

The protection offered by the of the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

The technological or practical feasibility of implementing the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

The potential deterrent effect on Internet users of the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification.

RESPONSE: Plaintiffs object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response. Accordingly, Plaintiffs have not yet been able to determine what documents they intend to introduce at trial.

All documents concerning the matters set forth in your response to Interrogatory No. 2, including but not limited to:

All reports prepared or written by persons identified therein;

All documents reflecting the opinions that the persons are expected to express and the basis and reasons for such opinions;

The data or other information the persons were given, considered, or relied upon in forming his or her opinion(s);

Any exhibits to be used as a summary of or support for his or her opinion(s);

A list of his or her qualifications, including a list of all publications that he or she has authored within the 10 years preceding the date of this request;

A statement of the compensation paid and to be paid to him or her for the study and testimony;

A list of all other cases in which he or she has testified as an expert at trial or by deposition within the four years preceding this request; and

Each person's current curriculum vitae and resume.

RESPONSE: Plaintiffs object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response. Accordingly, Plaintiffs have not yet been able to authoritatively determine each experts they intend to call at trial, or to retain. Additionally, the request goes beyond the requisite disclosure for expert witnesses set forth in the Federal Rules of Civil Procedure, and is, to that extent, unduly burdensome, overbroad and not calculated to lead to the discovery of admissible evidence.

Notwithstanding these objections, the expert reports of Plaintiffs' expert witnesses as identified in response to Interrogatory No. 2 constitute such responsive documents, and are either being produced herewith or will be produced within a reasonable time after retention of such experts.

All materials identified in response to the foregoing interrogatories. Plaintiffs refer Defendants to the response to Request No. 1.

Dated: New York, New York
November 17, 2003

By: _____________________________

JOHN F. WIRENIUS (JFW-1788)
Attorney for Plaintiffs
Barbara Nitke and the National Coalition for Sexual Freedom
52 Broadway-9th Floor
New York, New York 10004
(212)533-6300

New York, December 18, 2003 - The National Coalition for Sexual Freedom has submitted expert witness reports for their landmark Communications Decency Act lawsuit, Nitke v. Ashcroft (Case No. 01 Civ. 11476). John Wirenius, attorney for plaintiffs NCSF and photographer Barbara Nitke, provided 31 expert witness reports and witnesses who will testify before the three-judge panel for the Southern District of New York.

The expert witness reports support the plaintiffs' contention that "local community standards" cannot be accurately applied to the Internet and, therefore, cannot be used to determine what is obscene. If the most restrictive communities can control what is placed on the Internet, then everyone will be restricted to that standard. The Internet is a world-wide phenomenon, therefore websites should not be held to standards specific to geo-location because community standards vary significantly from region to region and community to community.

Expert witness reports were submitted that establish self-censoring by artists because of the vagueness of this law. The importance of anonymity because of the frequent persecution of sexual minorities was also established as well as the social importance of sexually explicit speech in both art and education.

"This phase of the trial is critical because the evidence is on the table," said John Wirenius, First Amendment attorney and author of First Amendment, First Principles: Verbal Acts and Freedom of Speech. "The plaintiffs are providing the scientific grounds for our contention that visitors to the Internet cannot be tracked, and therefore limiting content on the Internet will limit free speech. The government is obligated to show, if they can, why our experts are incorrect."

By law the government had 30 days from the date plaintiffs identified their expert witnesses to the court to file notice of the identities of rebuttal experts and written summaries of their anticipated testimony. To date the government has filed no such notice, and the deadline has passed.

The following Experts and Witnesses filed reports:

Artists Who Have Self-Censored

Barbara Nitke - professional photographer and co-plaintiff in CDA lawsuit

Patrick Califia - prolific author of essays, fiction and poetry

Deborah Christian - science-fiction/fantasy author

Nina Hartley - adult film star

Theresa Reed - writer, editor, and reviewer of adult videos and books

Candida Royalle - adult film star and producer of erotic films

Michele Serchuk - fine art photographer

Tristan Taormino - columnist, adult film producer and performer

Educational Organizations that have Self-Censored

Dov Hechtman for TES - TES is a New York-based pansexual, educational and social SM membership group

Glenda Rider for FIST - FIST is a Baltimore City educational and social SM membership group for women

July 26, 2005 - New York, NY - A three judge panel has made a decision in the National Coalition for Sexual Freedom and acclaimed photographer Barbara Nitke's challenge against the Communications Decency Act (CDA) which criminalizes free speech on the Internet. According to the court, the plaintiffs presented "insufficient evidence" to support findings that the variation in community standards is substantial enough that protected speech is inhibited by the CDA.

According to the decision handed down by the Federal District Court for the Southern District of NY, in case #01 CIV 11476 (RMB): "The plaintiffs have offered evidence that there are at least 1.4 million Websites that mention "BDSM" (bondage, discipline, and sadomasochism)... The plaintiffs have submitted images and written works that represent material posted to a small number of Websites, that they contend may be considered obscene in some communities but not in others. These examples provide us with an insufficient basis upon which to make a finding as to the total amount of speech that is protected in some communities but that is prohibited by the CDA because it is obscene in other communities."

The court agreed that NCSF members and Barbara Nitke are genuinely at risk of prosecution under the CDA and that their speech has in fact been inhibited. According to the decision: "Nitke's fear that the CDA will be enforced against her is actual and well-founded. She has submitted objective evidence to substantiate the claim that she has been deterred from exercising her free-speech rights, and this fear is based on a reasonable interpretation of the CDA... NCSF has submitted objective evidence that one of its member organizations, TES, has been deterred from exercising its free-speech rights and that this deterrence is based on a well- founded fear that the CDA would be enforced against it."

John Wirenius, attorney for the plaintiffs, says, "We are disappointed that the court did not act on the uncontradicted evidence we presented that artists and citizens who are sexual minorities are disproportionately censored by the Government's ability to pick its own forum and standard for obscenity cases. The government brings obscenity cases where it knows it can get convictions."

"I am appalled by this decision," says co-plaintiff Barbara Nitke, a fine art photographer who explores sexual relationships in her work. "It is vitally important to keep the Internet free for education, the arts and open discussion on sexual topics. This law is a form of unfair censorship that must be stopped. I am absolutely going to appeal this."

NCSF challenged against the CDA law because personal websites and chat groups that include discussions and images of SM, swinging or polyamory are at risk of prosecution. Membership groups that maintain educational websites about adult sexuality are also at risk.

Under the Bush administration, nearly 40 prosecutors, as well as investigators and FBI agents are spending millions of dollars to bring anti-obscenity cases to courthouses across the country for the first time in 10 years. Obscenity is judged by "local community standards," which means that a religious political extremist in the Midwest can claim that a website from San Francisco is obscene and therefore illegal.

NCSF is dedicated to proactively challenging the rise in obscenity and pornography prosecutions, including filing an Amicus Briefs in support of Extreme Associates, and supporting the Free Speech Coalition's injunction filed against the expanded record-keeping provisions of 18 U.S.C. B' 2257.

To contribute to the expenses of the CDA lawsuit, go to: www.ncsfreedom.org/donations.htm Every dollar goes directly to ensuring free speech on the Internet.

March 3, 2006 - In documents filed with the U.S. Supreme Court, the U.S. Justice Department did not contest NCSF's assertion that NCSF's Communications Decency Act challenge is properly before the Supreme Court on direct appeal. That is a big step forward because that means both sides agree that the Supreme Court should rule on the merits of NCSF and Barbara Nitke's case, and not on any procedural grounds.

The government requested that the Supreme Court affirm the lower court decision against Nitke vs. Gonzales, arguing that the case should move forward with only a limited briefing without argument. NCSF filed a response this week contending that the Supreme Court should order a full briefing and oral argument to hear all the facts in this important First Amendment lawsuit.

Now is the time to support NCSF! NCSF needs funds to continue providing operating support for the CDA lawsuit, commenced in 2001 and now finally before the U.S. Supreme Court. Donations also fund our constituency services: NCSF's Incident Response program helps over 700 people a year, and the weekly Media Updates alert subscribers about news articles dealing with SM, polyamory and swinging.

Full text of the governments Motion to Affirm and NCSF's reply can be found under our CDA coverage area.

Please urge your group to hold a fundraiser for NCSF. You can also mail a personal donation or log onto the NCSF website to donate: Donations NCSF appreciates your support!

NCSF is dedicated to proactively challenging the rise in obscenity and pornography prosecutions, including filing an Amicus Briefs in support of Extreme Associates, and supporting the Free Speech Coalition's injunction filed against the expanded record-keeping provisions of 18 U.S.C. B' 2257.

A project of NCSF and the NCSF Foundation

The National Coalition for Sexual Freedom is a national organization committed to creating a political, legal, and social environment in the United States that advances equal rights of consenting adults who practice forms of alternative sexual expression. NCSF is primarily focused on the rights of consenting adults in the SM-leather-fetish, swing, and polyamory communities, who often face discrimination because of their sexual expression.

National Coalition for Sexual Freedom

822 Guilford Avenue, Box 127

Baltimore, MD 21202-3707

410-539-4824

This email address is being protected from spambots. You need JavaScript enabled to view it.

March 20,2006 | WASHINGTON -- The Supreme Court turned back an appeal on Monday from a photographer who claimed a federal decency law violated her free-speech rights to post pictures of sadomasochistic sexual behavior on the Web.

Justices affirmed a decision last year by a special three-judge federal panel upholding the 1996 law which makes it a crime to send obscenity over the Internet to children.

The court could have used the case to set online obscenity standards. The subject of children and indecency has gotten more attention recently.

Last week the government renewed its crackdown on indecent television by proposing nearly $4 million in fines for controversial broadcasts.

The Supreme Court appeal was brought by photographer Barbara Nitke, whose work is featured in the book "Kiss of Fire: A Romantic View of Sadomasochism," and by the National Coalition for Sexual Freedom.

Material that is obscene is not protected by the First Amendment, but Nitke's lawyer contends her work is art that is not obscene.

Justices were told by attorney John Wirenius of New York that if they turned down the case, "many more Internet users will likely face the constitutionally unsupportable choice faced by Ms. Nitke: either to censor her published images or risk prosecution."

The law requires that those sending obscene communications on the Internet take reasonable actions to keep it away from children, like requiring a credit card, debit account or adult access code as proof of age.

March 20, 2006 - Washington D.C. Today the U.S. Supreme Court affirmed the Federal District Court's decision in Barbara Nitke and NCSF v. Alberto Gonzales, the challenge to the Communications Decency Act, #01 CIV 11476 (RMB). The Supreme Court has affirmed the lower court's decision without hearing oral arguments, sending a clear signal that the court will not protect free speech rights when it comes to sexually explicit materials.

The NCSF and Nitke lawsuit was successful in weakening the Miller standard of judging obscenity: the District Court for the Southern District of NY made a factual finding that the SLAPS prong of Miller does not provide protection against prosecution as it was intended to do. The Miller decision (1973) stated that materials were constitutionally protected if the work, taken as a whole, has "serious literary, artistic, political, or scientific value." However the District court accepted evidence from NCSF and Nitke that prosecutors and juries in more restrictive communities are less likely to extend protection to artistic and literary materials that are outside the mainstream of traditional sexuality.

"We have proven that Miller does not work," says Susan Wright, Spokesperson for NCSF. "But the Supreme Court has declined to strike it down at this time. That means every website on the Internet can be judged by the most repressive local community standards in the U.S."

The Supreme Court decision shows the importance of supporting NCSF, one of the few organizations proactively fighting obscenity laws. The CDA makes it a crime to post obscenity on the Internet because those materials may be viewed by children. NCSF and Nitke believe that adults should have the right to post and view sexually explicit materials involving consenting adults on the Internet.

"We knew that the Bush administration was laying its plans to prosecute sexually explicit material on the Internet," says John Wirenius, attorney for the plaintiffs. "By filing our lawsuit in 2001, we may have slowed the Justice Department from prosecuting obscenity in 2002-3, but the number of obscenity prosecutions has steadily increased ever since. We believe in fighting this battle and we took our fight all the way to the Supreme Court."

"I think we've achieved a great victory in drawing attention to how politicized our judicial system has become," says co-plaintiff Barbara Nitke, a fine art photographer who explores sexual relationships in her work. "Our obscenity laws are outmoded, especially in conjunction with the Internet. We've made a huge dent in how obscenity will be judged in the future, and I hope others will now stand up and continue to fight against repressive laws like this."

NCSF and Barbara Nitke would like to thank everyone who contributed to fund this important lawsuit, as well as the many dedicated witnesses and lawyers who assisted in bringing this case to court. In particular, NCSF and Nitke thank John Wirenius for his outstanding efforts in this case and his dedication to First Amendment rights. NCSF intends to continue the fight against obscenity laws in the U.S.

WASHINGTON, DC - The Supreme Court today denied an appeal by photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) in the case of Nitke v. Gonzalez. The appeal challenged the constitutionality of the Communications Decency Act on the grounds that the obscenity provision of the CDA is overbroad.

Last year, a three-judge panel in New York's Southern District had dismissed Nitke's lawsuit, ruling that there was "insufficient evidence" to show that the CDA was overbroad. In affirming that ruling today, the Supreme Court did not hear oral arguments in the case, instead issuing a four-word decision which reads simply: "The Judgment is Affirmed."

According to comments posted by attorney Alan R. Levy to his Live Journal blog, since the case had been decided by a three-judge panel, Nitke and the NCSF had an "appeal of right to the U.S. Supreme court," which meant that the court could not "deny certiorari and had to take the case." Levy is a senior associate with the law firm of Lester, Schwab, Katz and Dwyer in New York, and a member of the NCSF.

"Unfortunately, the Supreme Court's decision consisted of four words: 'The Judgment is Affirmed'," Levy wrote. "Hence, it appears that the 'Nitke' case is at an end."

The NCSF was clearly disappointed with the Court's decision and even more disheartened by the lack of any hearing or opportunity to present further arguments.

"The Supreme Court has affirmed the lower court's decision without hearing oral arguments, sending a clear signal that the court will not protect free speech rights when it comes to sexually explicit materials," the NCSF stated in a press release issued today.

While the NCSF stated their belief that the lawsuit "was successful in weakening the Miller standard of judging obscenity," a reference to the landmark decision in the 1973 case Miller v. California which established the "obscenity test" which courts have used ever since.

The NCSF, along with the Free Speech Coalition and many legal experts, has argued that the Miller test is no longer relevant, particularly where internet communications are concerned. Rather than take this opportunity to review and possibly update existing obscenity law, the NCSF worries that the court, by ducking the issue in this case, may have opened the floodgates to more obscenity prosecutions directed at sexually explicit websites.

"We have proven that Miller does not work," said Susan Wright, Spokesperson for NCSF in a press release today. "But the Supreme Court has declined to strike it down at this time. That means every website on the Internet can be judged by the most repressive local community standards in the U.S."

For her part, Nitke focused on gains made through the lawsuit, rather than on the negative outcome, and called on like-minded people to continue the "fight."

"I think we've achieved a great victory in drawing attention to how politicized our judicial system has become," Nitke said in the statement released by the NCSF. "Our obscenity laws are outmoded, especially in conjunction with the Internet. We've made a huge dent in how obscenity will be judged in the future, and I hope others will now stand up and continue to fight against repressive laws like this."

According to multiple reports from the Associated Press and other sources, the Bush Administration had actively urged Supreme Court Justices to steer clear of the case.

In addition to contributing to YNOT, Q is the Director of Traffic Development for NicheBucks.com and an eight-year veteran of the online adult industry.

The Supreme Court refused to hear an appeal yesterday from a New York photographer who said that a federal decency law violated her First Amendment rights to post explicit pictures of sadomasochism and bondage on the Web, The Associated Press reported.

The justices affirmed a decision by a special three-judge federal panel upholding the Communications Decency Act of 1996, which made it a crime to post obscene materials on the Internet. The appeal was brought by Barbara Nitke, whose work is featured in the book "Kiss of Fire: A Romantic View of Sadomasochism," and by the National Coalition for Sexual Freedom.

Freedom of Speech -- Whether a law requiring the National Endowment for the Arts to consider "general standards of decency and respect for the diverse beliefs and values of the American public" before awarding grants to artistic projects is impermissibly viewpoint-based and unconstitutionally vague.

Vote:

8-1; No, the law does not violate the First Amendment.

Facts:

In 1990, Congress amended the statute governing the National Endowment for the Arts to require that the NEA chairperson consider "general standards of respect and decency for the diverse beliefs and values of the American public" when awarding art grants. Four artists Karen Finley, John Fleck, Holly Hughes and Tim Miller, known collectively as the "NEA 4" sued in federal court, claiming the so-called "decency clause" violated the First Amendment and forced artists to engage in self-censorship in order to obtain NEA funding.

The trial judge ruled in favor of the "NEA 4," ruling that the decency clause was both unconstitutionally vague and overbroad. On appeal, the U.S. Court of Appeals for the 9th Circuit affirmed for "essentially the same reasons as the district court." The 9th Circuit determined the decency clause was void for vagueness and for violating the First Amendmentâs general prohibition against content- and viewpoint-based discrimination.

Legal Principles at Issue:

A bedrock principle of the First Amendment is that government may not prohibit speech just because it finds the speech offensive or disagreeable. Texas v. Johnson, 491 U.S. 397 (1989). Sexual expression which is indecent but not obscene is also protected by the First Amendment. Sable Communications of Cal., Inc. v. Sable, 492 U.S. 115 (1989). The First Amendment protects against viewpoint discrimination above other forms of content discrimination. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). When the government promotes a particular program and defines the limit of a program, it can fund speech that promotes its goals, even to the detriment of other goals. Rust v. Sullivan, 500 U.S. 173 (1991). "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." Maher v. Roe, 432 U.S. 464 (1977).

Legal Basis for Decision:

The decency clause only requires the NEA to consider "general standards of decency and respect" rather than directly precluding certain categories of speech. The nature of arts funding requires a certain level of content-based judgment. Because the NEA 4 did not allege "discrimination in any particular funding decision," the Court determined that it had not been presented with a grant denial on the basis of viewpoint.

This Case is Important Because:

The Court did not express its usual heightened concern over viewpoint discrimination, because the statute only instructs the NEA to consider "decency and respect" rather than to make funding decisions based solely on those grounds. The decision seems to afford an opportunity for content- and even viewpoint-based laws to be ruled constitutional, as long as they do not directly target certain types of speech.

Quotable:

"The terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns." (J. OâConnor)

"Finally, although the First Amendment certainly has application in the subsidy context, we note, that the government may allocate competitive funding to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake." (J. OâConnor)

"The decency and respect proviso mandates viewpoint-based decisions in the disbursement of government subsidies, and the government has wholly failed to explain why the statute should be afforded an exemption from the fundamental rule of the First Amendment that viewpoint discrimination in the exercise of public authority over expressive activity is unconstitutional." (J. Souter)

Net Obscenity Provisions Revocation Sought

December 19, 2001, Washington, DC -- A small civil liberties group has asked a federal judge in New York to revoke what remains of an Internet pornography law that was gutted by the U.S. Supreme Court in 1997.

In a complaint filed in a New York City Federal Court [http://www.USCourts.gov ] last week, the National Coalition for Sexual Freedom [https://ncsfreedom.org ] argued that the court should overturn the provisions of the Communications Decency Act (CDA) that prohibit Web sites from displaying obscene material online.

"Many people are unaware that one of the most powerful censorship provisions of the Communications Decency Act [http://EPIC.org/cda] is still in place. Even fewer realize the dangerous effect it could have in the hands of an overzealous administration and attorney general,"NCSF spokesperson Susan Wright said in a prepared statement. Passed by Congress and signed into law by President Bill Clinton in 1996, the CDA drew a barrage of criticism from industry groups, publishers and civil-liberties advocates.

In addition to prohibiting online obscenity -- which was already illegal in physical form -- the law called for Web site operators to be held criminally responsible if they allowed children to view constitutionally protected "indecent" material online.

Only the most graphic pornography and sexually explicit material meets the legal standard for obscenity. Milder sexually explicit material -- nude photos, erotic stories and the like -- may be considered indecent. But such material is protected under the First Amendment to the U.S. Constitution.

A broad coalition of public interest groups -- including the American Library Association [http://www.ALA.org], the American Civil Liberties Union [ http://ACLU.org ] and the Center for Democracy and Technology [http://CDT.org ] challenged the indecency provisions of CDA, on grounds that it could crimp the rights of adults to view constitutionally protected speech online.

The groups convinced a lower court to freeze those provisions; that decision eventually was upheld by the U.S. Supreme Court.

But the NCSF, which promotes sexual freedom and counts as members many operators of sexually explicit Web sites, maintains that the remaining online obscenity ban in CDA has a chilling effect on Web site operators who want to post sexually explicit materials.

The NCSF specifically argues that the "community standards" test in federal obscenity law is meaningless in global world of the Internet.

The obscenity ban in CDA is based on a decades-old obscenity standard that applies to printed materials, films and photos.

Center for Democracy and Technology (CDT) Associate Director Alan Davidson, who was involved with the original CDA challenge said that the obscenity language in CDA was deliberately left out of the first challenge for that very reason. "The concept of prohibiting obscenity speech -- as controversial as it may be -- has been relatively well-settled law for many decades now," Davidson said. "The focus of the original challenge was on the area of greatest threat to free speech, which was the indecency provision."

Most of the original CDA challengers are now in the midst of fighting another law -- the Child Online Protection Act [ http://COPACommission.org ] -- which was passed by Congress shortly following the Supreme Court ruling in CDA. That law has been dubbed "CDA II" by its opponents. The Supreme Court heard arguments on that legislation last month.

Techsploitation

By Annalee Newitz

San Francisco Bay Guardian, January 14, 2002

HERE'S YET ANOTHER wacky fact you probably didn't know about the Communications Decency Act ole Bill Clinton signed into law way back in 1996: the good citizens of some small town in Arizona or southern California might have the power to send you to jail if they think the contents of your Web site are "obscene." The CDA contains a section that makes it illegal for people to make or post on the Internet "any comment, request, suggestion, proposal, image, or other communication which is obscene, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication ... initiated the communication."

There are two major problems with this part of the CDA. First, it assumes that people on the Internet can control who sees what they post on a Web site or in newsgroups. Right now it's just not technically possible to screen Web surfers by age or anything else. Second, and more disturbingly, the CDA doesn't define what "obscene" might be. The only definitions offered refer to "local community standards," a phrase drawn from previous Supreme Court decisions that relied on the values of particular geographic regions to define "local community standards." Obviously, this definition is meaningless on the Internet, where Skippy from Massachusetts might post a picture of himself humping his kitchen appliances on a Web server operated out of Florida, which would then be downloaded by an eager Betty Crocker fetishist in Idaho.

Translated into a real-life scenario, the CDA language in question here means that somebody like New York artist Barbara Nitke (www.barbaranitke.com), whose Web site displays her erotic art, could be sent to jail if somebody under 18 happens to visit her Web site. This is precisely the scenario members of the National Coalition for Sexual Freedom in Washington, DC, fear most. To prevent the Ashcroft court from setting repressive precedents with this little-known section of the CDA, the NCSF and Nitke have gone on the offensive: in mid December they filed a legal complaint with the 1st U.S. District Court in southern New York that argues that the language about "obscenity" in the CDA is unconstitutionally vague and will have a chilling effect on free speech.

As NCSF executive director Judy Guerin told me last week, this case is just one of several the NCSF is planning, including ones that challenge digital surveillance sections of the USA PATRIOT Act. Guerin, whose organization was formed in 1997, says that we're at a crucial juncture in American politics right now. With Ashcroft in power, we're likely to see an increase in obscenity trials [^] the attorney general has a record of extreme conservatism in cases like these. At the same time, civil liberties groups like the NCSF worry that Ashcroft will use the "war on terror" to refuse to hear appeals in obscenity cases, since their outcomes have no bearing on our current state of national emergency.

"We think American society has made tremendous strides in how we think about sex and sexuality," Guerin says. "And we're concerned that this ultraconservative regime is going to set us back. We need to be aggressive and proactive to prevent society from reverting under the current conservative administration." Guerin adds that the Nitke case will almost certainly come before the Supreme Court. "Unlike most cases where you have to ask permission to be heard before the Supreme Court, the CDA gives us an automatic right of appeal to the Supreme Court." If the District Court finds the CDA unconstitutional, Ashcroft will probably fight it, and if the CDA isn't found unconstitutional, the NCSF will appeal to the Supreme Court.

Such a case, like many in the courts right now, will determine a great deal about the future of online content. It could set a precedent for how "local community standards" are defined in a world where community has nothing to do with geographic locality. Moreover, this case could become the first in the Supreme Court to grapple directly with the nature of "obscenity" online. Ironically, our most technologically advanced method of communication, the Internet, could become the means by which antiquated social values are disseminated on a global scale. Or it might propel us into a cultural future we never imagined. I'm not sure yet if that's a good thing or not.

Annalee Newitz (This email address is being protected from spambots. You need JavaScript enabled to view it.) is a surly media nerd who thinks everything has at least a little social, literary, artistic, or political merit. Her column also appears in Metro, Silicon Valley's weekly newspaper.

Communications Decency Act A Lingering Coup de Grace?

By Tim Kingston

January 23, 2002

You may dimly recall the Communications Decency Act of 1996, which unsuccessfully attempted to define and proscribe "indecency" on the Internet. That law's legal core--its indecency provision--was immediately challenged and rapidly struck down as unconstitutional by free- and electronic-speech advocates. But, what many may not know is that another portion of the law, prohibiting "obscene" materials on the Internet as defined by the Supreme Court, remains standing.

That is something that the National Coalition for Sexual Freedom (NCSF) and Barbara Nitke, a New York artist whose sexually charged photographs could be subject to the law, intend to change. Judy Guerin, the group's executive director, hopes this is a final coup de grace to that law. On Jan. 29, a federal court in New York City will be hearing preliminary arguments in a case that is likely to wind up before the U.S. Supreme Court--due to the fact that appellants have an automatic and expedited right of appeal. "Obscenity is tied to community standards," asserted Guerin. "We feel that community standards are not defined and what has been previously thought of as community standards in a geographic area is not applicable to the Internet. It could mean that the most restrictive community standards in the country could apply."

The problem that Guerin cites was equally problematic with the original attempt to outlaw "indecency" on the Internet. Essentially, Guerin and other civil-liberties proponents worry that the federal government could go "venue shopping" until they found a community with standards restrictive enough to guarantee a conviction. As she pointed out, Utah has a "porn czarina" who thinks that the women's magazines Redbook and Vogue are "obscene." Given that definition, it would not be outrageous to say that every queer publication on the Internet is at risk.

Guerin, whose group is a coalition of 22 different organizations representing some 10,000 members, added, "This is an important issue for all, from [those concerned about] sex education, to anyone who talks about any kind of sexual issue on the Internet. It is certainly something the LGBT movement should be very concerned about, become very proactive about and [be] aggressive against [U.S. Attorney General John] Ashcroft."

"We feel [the law] has a chilling effect because people do not know what is and what is not allowed on the Internet with relation to sexually frank material," said Guerin. "The good news is that we are proactively trying to overturn it before the administration tries to score political points by enforcing it."

The NCSF director pointed out that "Ashcroft has been meeting with Concerned Women for America, the Religious Right and the Christian Coalition, and has talked about prosecuting obscenity cases. If we don't do this proactively, they will prosecute a horrible case in a venue that is not favorable and it will be decided on their terms."

Asked if perhaps it might not be better to "let sleeping dogs lie" in this case, since the law has not been enforced or mentioned in years, Guerin responded forcefully. First, she cited the current repressive and frighteningly patriotic climate: "During these times our most basic American values get tested and free speech is a value that we are fighting for...our rights really hinge on freedom of speech." Laughing, she added, "The second part of that is that we don't think the [U.S.] Supreme Court is going to be better or any more liberal, any time soon."

SF Frontiers was unable to contact Department of Justice officials for comment. The staffer concerned was prioritizing the Marin Taliban press conference over the first amendment.

Can David Beat Goliath in the Battle of Obscenity?

Part 2

By Judd Handler

Ynot News, January 2, 2002

Last week's editorial featured an interview with John Wirenius, lead counsel for the National Coalition for Sexual Freedom and Barbara Nitke, an adult content photographer. Wirenius, on behalf of the NCSF and Nitke, filed a lawsuit on December 11 against Attorney General John Ashcroft seeking to overturn Internet obscenity laws as they relate to the Communications Decency Act (CDA), a statute, which is littered with extremely vague and archaic obscenity provisions.

The NCSF is a Washington, DC-based political advocacy-lobbying group, comprised of educational and social organizations. Established in 1997, this cohesive group consists mostly of S&M and fetish groups. Mainstream online adult webmasters could learn how to effectively form a lobbying group like the NCSF has done. While it may not seem necessary to some webmasters to become politically cohesive, for the NCSF members, it is a matter of life or ... a life that might as well be a dead, meaningless one. Many live in fear because of the moral minority's attacks on alternative lifestyles, and the lack of vocal and political support from those that approve of or actually engage in alternative sexual expression.

According to Wright, the Kinsey Institute in 1990 conducted a study, which concluded that five to ten percent of adults (up to 25 million people!) engage in alternative sexual expression such as bondage, cross-dressing, S&M and other fetishes. "That's a lot of people," says Wright. "Millions of adults in the U.S. engage in fetishes ... They are your teachers, bus drivers, doctors, professionals and blue collar workers." Adds Wright, "These people don't talk about what they do and they don't come out about it; yet they're everywhere."

Because of the lack of support, says Wright, the NCSF's members may lose their jobs and child custody. "Our sexuality is used against us, we are subject to hate crimes, persecution, harassment ... we are targets because we are a sexual minority."

The NCSF is comprised of 20 board member organizations, 35 supporting members and groups, including businesses and websites; and several thousand individual members. All together, Wright estimates that approximately 10,000 people belong to the NCSF.

Despite the fact that the National Opinion Research Center in 1998 found that over 60% of respondents were in favor of porn for adults, the NCSF and groups like it are extremely concerned with the current political climate. The NCSF knew it had to act quickly considering that this past summer, John Ashcroft met with radical right groups like the Christian Coalition and Concerned Women for America. Wright says about Ashcroft during this past summer that "He made it clear to them the Justice Department is ready to prosecute individuals under obscenity laws. These groups then sent press releases out claiming victory, so the NCSF knew they had to file quickly."

Wright and the NCSF to their credit realized that if individuals don't argue for their rights, the federal government could conceivably take those rights away. Says Wright, "We didn't want Ashcroft to pick the individuals to censor. We wanted to fight on behalf of educational groups, social groups, and individuals who are just trying to exchange information on sexuality. We want them to be protected. Many of our members have come to us for guidance as to what type of content they can legally post on their site but because the CDA is so broad we don't know what to tell them. This is becoming more and more of a problem, and because Ashcroft is ready to prosecute, we felt like we had to move."

When asked if she thinks her organization will emerge victorious, Wright answers, "Based on previous legal rulings in this area, I'm confident the court will find the CDA statute to be unconstitutional." (A provision calls for direct Supreme Court review.) The provisions of the CDA are so broad, that the indecency portion of CDA (struck down by the Supreme Court) would have cut off access to Planned Parenthood.

It's very unsettling when a very small minority has unchecked political power. For the NCSF, the objective is to fight it out so the public consciousness will be raised (truly a noble cause). As Wright points out, these issues deal with the rights to pursue happiness in a pluralist society. She also mentions that there is real demand and money for alternative sexual lifestyles, thus "We as a free pluralist society shouldn't allow anybody from the religious right to eliminate educational sites."

"When I was building my website, I was concerned about indecency and obscenity laws," says Nitke, from New York City. When asked why she's so concerned about her content when there is tons of questionable content on the web, she replies, "I may not be the first target but I will be greatly affected by how these laws can be interpreted." And this is why Nitke teamed up with the NCSF. Nitke echoes the sentiments of other S&M photographers and webmasters, saying, "It's really frightening ... let's say porn is the first target. As a result, sexual expression is the real target of some of these right-wing radical groups."

Nitke, like all other ethically conscious webmasters has a warning page on her site. I ask her, "You know very well a 12-year-old can enter your site even with a warning page. Can you see why the government is concerned?" Nitke answers, "The problem is we have to balance protecting children with protecting adults. My main concern on a personal level is that I feel that adults who want to see my work should be able to see it. I'm upset that adults may lose that right and I may lose the right to show my work."

I then ask Nitke a question I often ask other adult webmasters who engage in questionable hardcore content: "How could you defend the bound and gagged S&M lifestyle to an ignorant and close-minded jury?"

"I asked myself, Can S&M be a healthy activity that can contribute to the love life of adults? Yes it can. It's life enhancing," says Nitke. "If two adults agree on what they're going to do in advance and find a couple of minutes of happiness, I can't imagine why anyone would begrudge them."

The fact that porn rentals are a multi-billion dollar per year industry (see this week's Industry News column by Dave Cummings) unfortunately does not represent a squeaky wheel; the loudest squeak is coming from the minority-fringe right-leaning family advocacy groups. Webmasters who specialize in bondage and S&M should have a disclaimer on their site reading: This website is for consenting adults. Nobody was unwillingly harmed in the making of this content.

Adult webmasters may one day realize that they have to mobilize vocal support in such a way that it their beef is heard on Capitol Hill and not only in webmaster chat rooms. Webmasters should encourage their surfers to write letters to their government representatives, demanding that their rights to enjoy legal adult online entertainment are not taken away because of theocratic dogma. Adult webmasters should also take time to personally thank the NCSF and Barbara Nitke for having a giant set of balls and not being afraid to fight for their rights to express their sexuality.

This week's edition is a double issue. We will be back the second week of January with comprehensive Internext convention coverage. On a personal note, this issue marks my one-year anniversary serving as the editor for YNOT News. Party! See you next year...

Can David Beat Goliath in the Battle of Obscenity?

By Judd Handler

Ynot News, December 20, 2001

One would think it would take the giants of the industry to force the government to rethink existing, not-applicable-to-the-Internet obscenity laws. On the contrary, the little players may be the ones who are successful in getting the federal government and the Supreme Court to throw out irrelevant local community standards when applied to the Internet. As a result, new guidelines better suited for the cyber community may be formulated.

The National Coalition for Sexual Freedom and one if its members, an adult content photographer named Barbara Nitke are an example of those little players who aren't afraid to challenge the government. NCSF is a Washington, DC-based organization committed to protecting freedom of expression among consenting adults. A large portion of NCSF's members practices "an alternative sexual lifestyle," namely S&M, bondage and other fetishes. NCSF, according to its website, "mobilizes diverse grassroots communities to help change antiquated and unfair sex laws, and to protect free speech and advance privacy rights."

NCSF indeed does just that. On December 11, the NSCF and Nitke filed a lawsuit seeking to overturn Internet obscenity laws. The defendant in the case: John Ashcroft and the Federal Government.

Why would an organization such as NCSF and a relatively unknown photographer (outside the S&M community) try to battle a behemoth such as the Federal Government and what do they hope to accomplish?

I spoke with John Wirenius, the plaintiffs' lawyer (of the firm Leeds, Morelli & Brown, www.lmblaw.com), Susan Wright, the spokesperson for the NCSF and Nitke. This week, I will focus on my conversation with Wirenius. Next week, I will provide the insights of Wright and Nitke.

"The Supreme Court meant what it said in 1997, [that] they are drawing a distinction between indecency and obscenity, and that should put all adult webmasters on guard," said Wirenius. "Unless they can prove their work has literary, artistic, social, and political merit, they are at risk for prosecution."

Wirenius discussed with Susan Wright how to advance the NCSF's legal agenda and what was the best approach to raise the issues concerning free expression. Hence, the lawsuit. "One of the biggest concerns the NCSF's constituency had was the right to communicate with each other," said Wirenius, who mentioned the problem with censorship is that how it will be played out on the web, legally, has been a big question mark since 1997. That's when the Supreme Court struck down the indecency portion of the Communications Decency Act (CDA). The Supreme Court had the integrity to render that portion of the statute unconstitutional; however said Wirenius, "It left a portion unanswered of how obscenity be defined." He continued: "It striking down the INDECENCY problem, the court argued a geographical approach to local community standards wouldn't work with regards to the Web. It didn't explicitly hold that in the context of OBSCENITY, because the ACLU decided not to challenge obscenity."

Elaborating on why the ACLU didn't tackle the obscenity portion of CDA, Wirenius said the ACLU was more concerned with the indecency provision due to its broader nature. An adult webmaster can get him/herself out of an obscenity prosecution if the work in question has serious literary, social, political and artistic values; whereas with the indecency statute, the social value defense wouldn't necessarily work.

When asked if he thought the lawsuit would result in a positive outcome for the NCSF, Barbara Nitke and adult webmasters, Wirenius said, "We are confident we can get a decision on the merits."

It's important to note that this isn't the same as winning a lawsuit and successfully suing the feds. What this means, as Wirenius explained is that if successful, the courts will agree with the NCSF and Nitke that this particular case poses the legal question, "What should obscenity standards be as applied to the Internet?" That question, said Wirenius has been avoided since the creation of the Internet. "It needs to be decided and if it's not decided in the context of a case like ours, which involves Barbara Nitke, a serious artist whose work is genuine and supported by artistic rationale, it will be chosen in the best case of the government -- one that would justify the widest range of suppression." The NCSF and Nitke's case is an example that the Wirenius' legal team can present the court to raise "the specter of censorship on the Web." (The lawsuit was filed in the U.S. District Court for the Southern District of New York.)

Adult webmasters should pay attention to this lawsuit, as it is a perfect test case to see how the federal government will deal with those involved in online adult entertainment.

Expounding on the importance of this case, Wirenius said, "Social values are very subjective; it's not something that can be resolved in an easy manner. In legal terms, it's called mixed question of fact and law: a jury may find a work to not have serious literary, artistic, political and social value but that doesn't end the equation. It goes up on appeal. With an obscenity prosecution it shifts the burden of proof. The only way to effectively guarantee an acquittal in an obscenity prosecution is to stand trial."

This is the significant issue for adult webmasters as John Ashcroft has already appointed somebody to head the obscenity division of the Justice Department. This will most likely be an attempt to reverse the lack of obscenity prosecutions during the Clinton Administration. (For more on this, see Joe Obenberger's article on AVNOnline.com.)

In the best case scenario, the Supreme Court will knock the statute out as unconstitutional on the grounds that a geographic-based local community standard approach is not the best measure for the Internet, said Wirenius.

On page 4, YNOT News has an interview with Mike Jones, an adult photographer that is all-too familiar with being prosecuted according to draconian local community obscenity standards. Read what he has to say In the Spotlight.

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New Suit Targets Obscenity Law

A national organization that promotes sexual tolerance and an artist who photographs pictures of couples engaged in sadomasochism filed a lawsuit Tuesday seeking to overturn Internet obscenity laws.

The National Coalition for Sexual Freedom and photographer Barbara Nitke argue that the obscenity provision of the Communications Decency Act (CDA) is so broad that it violates free speech.

The suit, filed in the U.S. District Court for the Southern District of New York, names as plaintiffs Attorney General John Ashcroft and the U.S. government, and aims to blot out the remaining censorship provisions of the CDA, a measure passed to protect minors from online pornography. Violators of the act face fines of up to $250,000 and two years in prison.

The CDA was first attacked in the 1997 case Reno v. ACLU, when the Supreme Court struck down provisions related to indecency, ruling that the law harmed constitutionally protected free speech.

The act's obscenity provisions are targeted by the new challenge.

The murky semantics of the terms "obscenity" and "indecency" have long been the bane of First Amendment lawyers. (For the ACLU's take on the debate, click here).

The CDA defined indecent material as "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The Supreme Court ruled in the Reno v. ACLU case that this broad definition unfairly criminalized speech about a variety of benign topics related to sexual health, such as contraception.

The Supreme Court ruled that obscene speech -- which is not protected by the First Amendment -- must meet the following three criteria: 1) it must be prurient in nature, 2) it must be completely devoid of scientific, political, educational or social value, and 3) it must violate local community standards.

The lawsuit filed Tuesday claims that the obscenity provision outlined in Section 502 of the CDA is so vague and arbitrary that it could violate speech that should be protected.

The sticky words here are the so-called "local community standards," said John F. Wirenius, the plaintiffs' legal counsel and an attorney for civil rights firm Leeds, Morelli & Brown.

"Obscenity is unprotected speech, but not all material is obscene from jurisdiction to jurisdiction," said Wirenius. "Material may be considered obscene in Utah, for example, but not in New York. Whose standards are supposed to be applied to the Internet?"

His clients fear that their content will be judged by the most conservative standards, making them vulnerable to obscenity charges.

"Most people don't realize that one of the most strident censorship provisions of the CDA is still in place," said Susan Wright, spokeswoman for the National Coalition for Sexual Freedom. "The CDA is still having a chilling effect on Americans who operate websites -- they either have to resort to self-censorship or risk prosecution."

Wright, who said her coalition has 10,000 members from alternative sexual groups, insisted the material produced by her organization was not obscene but that it could be considered so in certain Bible-banging realms of the country.

Plaintiff Barbara Nitke said the Internet is one of the few places where she can exhibit her controversial photographs and worried that this venue might soon be closed to her.

"I strongly believe that people who want to see my work or the type of work I do by other artists should have the right to do so," said Nitke. "But I feel this act will be used against me eventually and that worries me."

But others said the quest to overturn the CDA is a long shot.

Previous First Amendment challenges to obscenity laws have failed in court, said Miriam More, a legal policy analyst for the conservative Family Research Council, which blames pornography for crimes ranging from rape to assault.

Conservative groups such as the FRC do not see the merit of the content produced by sites such as the coalition, and regard their material as porn, plain and simple.

"Obscenity laws should be upheld on the Internet for the same reason they're upheld elsewhere," said More. "When the pornography industry is left unregulated, it keeps pushing to see how far they can go. They never say 'We've done Anal Gangbang One so we don't need to do Farm Gang Bang.'Â The laws need to be enforced."

STANDING UP TO BE COUNTED: BARBARA NITKE CHALLENGES JOHN ASHCROFT ON S/M AND INTERNET OBSCENITY

By David Steinberg

Spectator Magazine, January 11, 2002

"No matter how we're wired to express love, freedom is having the courage to be who we are." - Photographer/plaintiff Barbara Nitke

On December 11, Barbara Nitke and the National Coalition for Sexual Freedom brought suit in New York City's Federal District Court, seeking to have the last remaining censorship provision of the 1996 Communications Decency Act declared overbroad, vague, and therefore unconstitutional under the First Amendment. The suit, which will be heard this spring by a three-judge panel headed by Judge Richard Berman, is a sequel to the 1997 action by the American Civil Liberties Union, Reno v. ACLU, that resulted in the Supreme Court unanimously striking down the provision of CDA that criminalized indecent, "patently offensive" material broadcast over the Internet. The aim of Nitke v. Ashcroft is to have the ruling extended to CDA's criminalization of obscene material as well.

The Communications Decency Ac was the first Federal statute attempting to regulate sexual material broadcast over the Internet. CDA makes it a Federal crime to transmit any obscene or indecent "comment, request, suggestion, proposal, image, or other communication" over the Internet, if such material can be viewed by people under 18. The question of what is obscenity or indecency has always been a complex one.

The current Federal definition of obscenity, the Miller test, stems from a 1973 U.S. Supreme Court ruling in the case of Miller v. California. Under the Miller test, material is legally obscene only if it is sexually explicit, patently offensive according to "local community standards," and lacks any "serious literary, artistic, social, educational, or scientific value. "Sexually explicit material that does have serious social value, but is still offensive according to local community standards, falls into the legal category of indecency, even though it is not obscene. As a result, it can legally be subjected to some degree of government regulation. The supreme Court has ruled, for example, that the times when indecent material can be broadcast on television can be limited to certain late night hours, when it is presumably less likely to be seen by children.

The community standards provision of the Miller ruling allowed the Supreme Court to acknowledge that material considered obscene or indecent in a small town in rural Kansas may nonetheless be quite acceptable in Manhattan or San Francisco, and to avoid imposing one standard on the entire nation. Indeed, courts have ruled that the local community standards that are applied to questions of obscenity and indecency can vary not only city by city and state by state, but even from one city neighborhood to another.

Under Miller, publishers and distributors of erotic and sexual books, magazines, films, and videos have become accustomed to making complicated decisions about where and how they want to market their products. Many mail-order companies choose not to market products in states like Utah and Alabama that they promote extensively in more sexually progressive parts of the country. Other companies choose not to process mail orders from certain states at all. By restricting their marketing, companies are able to choose which local community standards they want to subject themselves to with regard to potential obscenity or indecency charges. Companies also insure themselves against selling to minors by having potential customers certify that they are over 18 years of age.

On the Internet, however, the possibility of all such geographical and age verification vanishes. When a store, publisher, artist, or writer puts erotic and sexual material up on their website, that material immediately becomes available to people from the most progressive to the most conservative communities in the country and, more broadly, in the world. Furthermore, issues of obscenity and indecency on the Internet extend beyond the sale of products to such simple acts as viewing an artist's work, or reading a writer's short stories. Is there an identifiable Internet community whose "local community values" can be used to define which material is legally obscene and which is not? What might that community be?

The Communications Decency Act says nothing about which community's standards of obscenity are to be applied to the Internet. Because it limited itself to issues of indecency in Reno v. ACLU, the Supreme Court has so far been silent on this issue as well.

Nitke v. Ashcroft seeks to change all that. The complaint claims that, in the absence of a clear definition of which community standards apply to the Internet, CDA has the effect of chilling all Internet expression since questions of the legal obscenity of Internet material might well be judged by the values of the most restrictive communities in the country. This, says John Wirenius, attorney for Nitke and NCSF, makes the obscenity provision of CDA so far-reaching as to be unconstitutional. His hope is that Nitke v. Ashcroft will prompt the Supreme Court to overturn the CAD's obscenity provision, perhaps overturn the CDA entirely, and hopefully define for the first time which community standards are to be used in judging the potential obscenity of online sexual material.

Barbara Nitke is a brilliant, well-known, and widely respected New York fine art photographer. Much of her work comprises powerful, emotionally complex, visually evocative images that depict couples engaged in a wide variety of sexual activities. Many of her images show couples engaged in various forms of consensual sadomasochism. Her photographs are noteworthy both for their exceptional visual beauty and for the depth of the emotional connections she captures in her subjects.

Her website ( http://www.barbaranitke.com/) is the antithesis of the generically garish porn website. It is visually subdued, attractively designed, geared less to selling products (though Nitke's prints are offered for sale) than to providing a showcase for her work.

One image shows a woman looking down tenderly into the eyes of her lover, who lies bound and gagged in her arms. Another shows a woman smilingly listening to instructions from the director on a porn film set, while a man's mouth is hard at work between her thighs. Another shows a woman staring wistfully off into the distance while her woman lover lies helplessly bound and gagged in front of her on the kitchen table. Yet another shows a man concentrating intently as he whips the back of his male lover, who cries out at the pain of the lash.

Other sections of her website provide Nitke with an opportunity to talk about both her work and her personal background. "For many years I shot stills on hardcore porn shoots," she recounts. "I thought it was the most exciting, stomach-turning, heart-warming subject I could ever hope to photograph. I know that sounds crazy. But for me there was a certain feeling of freedom that went with shooting porn which, most of the time, made up for all the other things. [There were moments] when I'd look through the lens into someone's shell-shocked eyes and see a forgotten part of me staring back. That was the shot I wanted for me."

Speaking of her s/m photography, Nitke notes that her goal there is "to capture the bond between [the lovers], and also the intense energy of ritual, passionate s/m. I [want] to photograph deep intimacy and trust, the two main concepts which underlie most s/m practices."

When John Wirenius approached her about being the plaintiff in this lawsuit, Nitke says she knew immediately that she wanted to be part of the effort. "I told John I wanted to sleep on it, but I knew right away that I would do it, which was what I told him the next day." Although she has supported various freedom of expression issues in the past and has been a member of NCSF since the organization was founded, Nitke has never thought of herself as a political activist, not even with regard to free speech issues.

"But you end up being an activist even if you don't want to be," she says pointedly. "If artists as a group don't stand up and do something, the censors are just going to keep going further and further. Most artists don't want to deal with this sort of thing, but we have to."

She recalls a time of showing her work to a gathering of curators and gallery owners in Portland, Oregon, all of whom told her that her photography was excellent, but also said there was no way they could show it, given the current political climate regarding sexual imagery. It was experiences like these, Nitke says, that made her conscious of how impossible it was becoming to show important, sexually controversial work throughout the country.

It wasn't until Nitke decided to put together her own website that she fully realized how heavily the prevailing political climate was weighing on her. Nervous about recent legislation like the Community Decency Act, she called other photographers who were doing erotic and sexual work like hers -- images that were controversial, sometimes sexually explicit, but distinctly artful in intent and style, and distinctly outside the realm of commercial pornography. She also spoke with publishers of erotic magazines equally distant from the production and distribution networks of the porn world. Were these people worried about Ashcroft and how he would apply the laws that Congress was passing related to supposedly obscene material? Did she need to be concerned about being a target for prosecution herself? What kinds of images could she put on her website without risking embroiling herself in legal defenses that could eat up tens of thousands of dollars, not to mention months of time and heartache? And wasn't it horrible that, as a serious artist interested in sexual issues, she had to be distracted by these sorts of issues at all?

"That's why this suit is so important to me," she summarizes. "It's both a practical matter and a matter or principle."

Unlike Barbara Nitke, the National Coalition for Sexual Freedom ( https://ncsfreedom.org/) came to Nitke v. Ashcroft directly from an interest in political advocacy of the sexual civil rights of people who find themselves outside the American sexual mainstream. Founded in 1997 "to help change antiquated and unfair sex laws, and to protect free speech and advance privacy rights," NCSF has drawn its primary support from a broad group of S/M activists, initially in New York, but later from other parts of the country as well. It's 21 voting member groups now span the country from New York to Las Vegas, from Greensboro, North Carolina to Blue Island, Illinois. The groups range from long-standing s/m advocacy and support groups, like the Eulenspeigel Society of New York, to newer groups like St. Louis's Leather and Lace, and Cincinnati's Masters and slaves Together. Member groups like the Lesbian Sex Mafia and Gay Male S/M Activists reflect the broad diversity of sexual orientation that is very much a part of the national s/m-leather-fetish subculture.

NCSF has been increasingly effective in speaking up for the basic civil rights and freedom of speech of people involved in safe, sane, consensual s/m. It has successfully fought selective enforcement of zoning and public indecency laws in San Diego, Baltimore, Attleboro (Massachusetts), and Washington, DC Its Law Enforcement Outreach Program strives both to educate law enforcement officials about s/m communities, and to educate members of the s/m community about how to minimize their risk as potential targets of selective enforcement of zoning, public indecency, and aggravated assault laws.

NCSF spokesperson Susan Wright notes that the organization has very much wanted to take the initiative in challenging antisexual legislation like the Communications Decency Act, rather than waiting to respond to what it saw as inevitable upcoming attacks on sexual expression from the Bush-Ashcroft Administration.

NCSF is sure that new attacks on sexually-oriented materials and entertainment, particularly material available on the Internet, has been high on the priority list of the Ashcroft Justice Department, even if that agenda has been somewhat delayed by the focus on terrorism that followed the events of September 11. They note that on November 14, Ashcroft appointed Andrew G. Osterbaan to head the Justice Department's Child Exploitation and Obscenity Section. Earlier this year, Ashcroft assured various conservative organizations that he intended to vigorously pursue prosecutions under the CDA. On June 9 he also told the House Judiciary Committee that the Justice Department intended to be "especially accommodating to local law enforcement" with regard to helping them put operators of Internet sex sites behind bars.

"Our goal [with the Nitke suit]," says Wright, "is to overturn this unconstitutional provision [of the CDA] before this Administration tries to score political points by attempting to enforce it." Attorney John Wirenius adds that there is much to be gained from seizing the initiative in legal matters, rather than waiting to mount defenses to prosecutions initiated by the Justice Department. "This way we get to choose the test case, not Ashcroft," he emphasizes. "I'd much rather have the obscenity provision of the CDA be decided on the basis of Barbara Nitke's work than on the basis of something like http://www.bestiality.com/"

Wirenius is optimistic about Nitke v. Ashcroft at the Federal District Court level. He notes that Judge Richard Berman, who will preside over the case in Federal District Court this spring, wrote what Wirenius calls a "terrific decision," Swedenburg v. Kelly, in which he ruled that material on the Internet cannot be subjected to geographical community standards in the same way that books or films can. "Judge Berman," says Wirenius, "is a fair-minded judge who understands the posed by the Internet."

Wirenius is also optimistic of the fate of Nitke v. Ashcroft before the U.S. Supreme Court, where the case will ultimately be decided. He sees this case as a logical extension of Reno v. ACLU from issues of indecency to those of obscenity and notes that, despite its general conservative bent, the current Supreme Court has been fairly vigilant on free speech issues.

Whether or not Nitke v. Ashcroft is ultimately successful in overturning the obscenity provision of CDA, the fact that the issue is being raised by NCSF represents a significant new political and legal posture for the s/m community which, until recently, has been more closeted and less inclined to take aggressive political and legal action than more long-standing and well-known sexual minority groups. As NCSF notes, "in the past decade, alternative sexual expression [particularly s/m] has become much more visible to the general public," and people who engage in s/m have therefore become subject to "an increasing number of attacks against our right to freedom of sexual expression." Actions like Nitke v. Ashcroft demonstrate that s/m practitioners have begun to join the ranks of lesbians, gays, bisexuals, and transgendered people in insisting that non-traditional sexual and gender expression not subject them to anything less than full and equal treatment under the law.

What's Obscene in Podunk

By John Strausbaugh

New York Press, August 28, 2002

Barbara Nitke is a well-known and much-seen photographer in her field. She's president of the New York Camera Club and teaches a course in darkroom technique at SVA. A nice, neat, sweet individual, she's the very very last person in New York City you'd suspect of being a pornographer. Which she's not, not exactly. She's more an arty photo-documentarian of porn -she shot an enormous number of stills on the sets of porn shoots in the 80s and 90s-and of the activities of people of "alternative sexuality" (read: s/m).

You can see a sampling of her work at barbaranitke.com. Some portion of the erotic photography you encounter elsewhere on the Internet is also her work. And that, plus the fact that she's the very antithesis of the sleazy, trashy, drug-damaged porn professional, makes her the perfect person to front a legal challenge to current obscenity law.

Which she's doing in a case with the simple yet grandiose name Nitke v. Ashcroft.

Nitke knows about obscenity prosecutions from close personal observation. Her ex-husband Herb produced porn in the 70s, including, she says, an uncredited role in financing The Devil in Miss Jones. During the movie's several obscenity trials, "He was always the guy on trial," she recalls. "So my free-speech thing goes way back."

It was when she was putting together her website, a gallery of selected photos culled from 20 years on porn sets and in s/m dungeons, that Nitke began to worry about her possible legal exposure.

"I was really proud of getting my website up, but also really concerned," she says. "There were some very scary laws that got on the books when Clinton was in power, but they never got enforced. With Ashcroft coming in, these laws were about to be enforced, I thought. A person like me, if I get hit with an obscenity suit, it's an immediate go into bankruptcy, plead guilty. There's no way I'd have the resources to fight it... I started calling around to lawyers and anybody who'd have any legal advice for me."

One lawyer she spoke with was John Wirenius, a partner at Leeds, Morelli and Brown, on Long Island (they used to have an office in the WTC as well), a firm that specializes in civil rights and civil liberties. Wirenius focuses on First Amendment cases, has lectured and written on it (First Amendment, First Principles).

Wirenius had been approached by the National Coalition for Sexual Freedom (NCSF; www.ncsfreedom.org), an organization "committed to protecting freedom of expression among consenting adults" founded in '97. Member groups include gay, leather and s/m organizations like New York's Lesbian Sex Mafia and Eulenspiegel Society. They had the same worries as Nitke about John Ashcroft and the Bush administration.

New York judges refuse to say Internet obscenity law is unconstitutional

By LARRY NEUMEISTER

Associated Press Writer, July 25, 2005, 7:58 PM EDT

NEW YORK -- A special three-judge federal panel on Monday refused to find unconstitutional a law making it a crime to send obscenity over the Internet to children.

The Communications Decency Act of 1996 had been challenged by Barbara Nitke, a photographer who specializes in pictures of sadomasochistic sexual behavior, and by the National Coalition for Sexual Freedom, a Baltimore-based advocacy organization.

They contended in a December 2001 lawsuit brought in U.S. District Court in Manhattan that the law was so broad and vague in its scope that it violated the First Amendment, making it impossible for them to publish to the Internet because they cannot control the forum.

A judge from the 2nd Circuit Court of Appeals and two district judges heard the facts of the case and issued a written decision saying the plaintiffs had provided insufficient evidence to prove the law was unconstitutional.

The panel noted that evidence was offered to indicate there are at least 1.4 million Web sites that mention bondage, discipline and sadomasochism but that evidence was insufficient to decide how many sites might be considered obscene.

The judges said the evidence also was insufficient for them to determine how much the standards for obscenity differ in communities across the United States.

The court said it was necessary to know how much the standards vary to decide if those creating Web sites would be graded for obscenity unfairly when compared with those who market traditional pornography and can control how they distribute the material.

As the law stands, a communication is obscene if according to each community's standards it appeals to the prurient interest, depicts or describes sexual conduct in an offensive way and lacks serious literary, artistic, political or scientific value.

The law requires that those sending the communications take reasonable actions to restrict or prevent access by children to obscenity, sometimes by using a verified credit card, debit account or adult access code as proof of age.

Nitke, who has exhibited her work for more than 20 years, said she will appeal the ruling.

"I'm appalled," she said. "I think it's vitally important to keep the Internet free for education, the arts and open discussion on sexual targets."

The National Coalition for Sexual Freedom also was disappointed with the ruling, spokeswoman Susan Wright said.

"Personal Web sites and chat groups that include discussions and images of explicit sexuality are at risk of prosecution," she said. "Basically, we proved we're at risk of prosecution, and speech has been chilled because people are afraid to put anything sexual on their Web sites."

Group lawyer John Wirenius said in a statement that the court declined to find the law unconstitutional "by setting a standard so high that no plaintiff could have met it."

"They required us to prove facts that the government has refrained from making a paper trail on for 30 years," he said.

The National Coalition for Sexual Freedom works to change antiquated laws, oppose censorship of consensual sexual expression and help people who are facing the threat of prosecution or legal action, its Web site says.

Fotog vs. Feds in Obscenity Law: Files suit to keep photos on Web

by Veronica Vera

New York Daily News, July 15, 2002

Photographer Barbara Nitke is used to being behind the lens, but if legal matters heat up, she may soon find the government focusing on her.

Nitke is ready to step into the foreground as the chief plantiff in Barbara Nitke and the National Coalition for Sexual Freedom vs. John Ashcroft and the US Government in a challenge to the Communications Decency Act, which governs obscenity on the Internet.

The lawsuit was filed on Dec. 11 in Manhattan Federal Court of New York; the government moved to dismiss, and the plaintiffs have moved for an injunction.

The case continues to make its way through the courts.

Nitke, whose photo show "20 Years" opened on Friday at the Art at Large Studio in Manhattan, began her career in 1982 as a still photographer on movie sets.

But since 1994, her emphasis has been on chronicling the intimate lives of couples. She has gained a considerable reputation as a fine-art photographer and is on the faculty of the School of Visual Arts.

Photojournalist Mark Peterson, who attended the packed opening, commented, "There is a beauty and ethereal quality to her work that forces people to look at it in a different way than they might have when they walked into the room." He compared her work with that of Robert Mapplethorpe, who stirred controversy with his erotic photos.

Nitke's involvement in the civil liberties lawsuit began when she decided to create a website on which to show and sell her work. Aware that her photographs are highly provocative, she consulted several lawyers regarding obscenity laws, only to discover that under the Communications Decency Act, obscenity is a gray area determined by community standards.

A 1997 Supreme Court ruling struck down half of the act, the "indecency" section, when it determined that if a work is indecent but still can be found to have redeeming social value, it can be displayed in public. But the "obscenity" portion of the act still stands. Among the lawyers Nitke consulted was John Wirenius, legal counsel for the National Coalition for Sexual Freedom.

The members of the coalition, "a national organization committed to protecting freedom of expression among consenting adults," were also concerned about obscenity statutes and decided to pursue a proactive stance and challenge the law. They asked Nitke to be the plaintiff because, as Wirenius said, "We wanted to make clear that under the current law, a serious artist whose work is sexually explicit and controversial could be prosecuted."

The tactic proposed by the coalition to sue the government to either define or eliminate the obscenity law appealed to Nitke, who said she believed, "Why wait to respond to trouble if you can nip trouble in the bud?"

Barbara Nitke's "20 years" can be seen through August 3 at Art at Large, located in the Film Center, 630 Ninth Ave. Hours are Tuesday through Friday, 1pm to 6pm and Saturday and Sunday by appointment.

Nerve

December 11, 2001

Photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) filed a lawsuit today, claiming the Internet censorship provision of the Communications Decency Act (CDA) violates the First Amendment right to free speech.

The provision stipulates that "local community standards" will judge whether or not something is indecent. Yet attorney John Wirenius argues that "By allowing the most restrictive jurisdiction to define what speech can be banned as obscene from the Internet, the CDA allows one community to limit what the entire nation is allowed to discuss, to read or to view. The First Amendment does not allow any one locality to impose its morality on the nation."

Artists like Barbara Nitke fear that their artwork could be targeted by John Ashcroft, who has promised to enforce obscenity laws.

Lawsuit targets last scraps of Net-obscenity law

By Sam Costello (IDG News)

CNN, December 20, 2001

The National Coalition for Sexual Freedom (NCSF) and artist Barbara Nitke have filed a lawsuit challenging the remaining provisions of the Communications Decency Act, much of which was struck down by the U.S. Supreme Court in 1997.

The act, or CDA, was passed in 1996 and was the first U.S. law designed to allow the regulation of Internet content. The remaining provision of the law bars the publication of material online that is deemed obscene under "contemporary community standards." The lawsuit, filed last week in Federal District Court in New York, challenges that aspect of the law saying it is so broad and vague that it violates the First Amendment freedom of speech protection and could prohibit frank sexual discussion among adults on the Internet.

Under the law, obscenity is determined using local community standards. But applying that standard to the Internet means asking the question whether the local community is the one where the Web site is hosted or the one where it is viewed, said Susan Wright, spokesperson for the NCSF.

This existing CDA provision balances on the narrow difference in the legal definitions of the terms "obscenity" and "indecency." In its CDA ruling, the Supreme Court allowed that the government could investigate and prosecute obscene speech, that is, speech with no redeeming merit.

Those obscenity provisions are too broad and vague in the view of the NCSF.

"What is the local community standard," Wright asked. "Is it where you live? Where the Web site is? Is it the most restrictive community in America? The least?"

The rest of the CDA should be overturned, she said, as it isn't right for members of a small, rural town to be able to determine the community standards of cities like New York or San Francisco.

The NCSF filed the suit because "the CDA could have a dangerous effect on the Internet in the hands of an overzealous administration and this attorney general," Wright said.

Attorney General John Ashcroft indicated a willingness to pursue CDA prosecutions when he met with a number of conservative groups earlier this year, Wright said, noting that the NCSF had obtained copies of information those groups had sent to their members after the meetings.

Ashcroft has come under fire from some groups for his expansion of government surveillance powers after the September 11 terrorist attacks. Ashcroft has responded to those criticisms by charging that his critics are aiding terrorists by raising such concerns.

Wright dismissed notions that Ashcroft is too occupied by antiterrorism efforts to worry about Internet indecency. He made moves in early November that effectively blocked a voter-approved assisted suicide law in Oregon, a measure unrelated to terrorism, she noted.

"He's demonstrated he has the time and resources for other battles (than terrorism)," she said.

NCSF Tackles "Community Standards" For The Web

By Mark Kernes

Adult Video News, February Issue

Washington, DC

The National Coalition for Sexual Freedom may not be a household name, even in the adult entertainment industry, but if their recently-filed lawsuit succeeds, they may go down in history as the first group to secure Americans' core constitutional speech rights.

NCSF is based in the nation's capital [~] in fact, only a few blocks northwest of the Capitol itself [~] and their objective is to protect freedom of expression among consenting adults, which for them includes a large number of citizens who practice "alternative sexual lifestyles."

The group, and one of its members, Barbara Nitke, filed suit on December 10 to challenge one portion of the 1996 Communications Decency Act (CDA) that the ACLU never got around to [~] some would say, "didn't have the balls to consider" [~] challenging when they filed their suit in 1997, which suit resulted in the term "indecent" being struck from the law as an unconstitutional restriction on Internet free speech.

But the CDA also criminalized Internet "obscenity," and that taboo remains in the law. And as far as plaintiffs' attorney John F. Wirenius is concerned, that's equally unconstitutional.

"Obscenity is unprotected speech, but not all material is obscene from jurisdiction to jurisdiction," Wirenius told Wired News. "Material may be considered obscene in Utah, for example, but not in New York. Whose standards are supposed to be applied to the Internet?"

The problem is the Supreme Court's Miller test for obscenity, which may or may not be implicated in the Child Pornography Prevention Act (COPA) case which was argued by the ACLU before the high court in late November. In order for a work to be obscene, it must appeal to the prurient interest of the average citizen; be completely devoid of any literary, artistic, political or scientific value; and must offend the standards of the community in which the work is being prosecuted, which for most jurisdictions is the state in which the charges are brought.

The trouble with the test is, the Internet has no "community" [~] or, to put it another way, it is its own worldwide community, a "problem" faced by every country whose government finds offensive some material on some Website based abroad and out of that government's control. For instance, it is universally agreed among adult webmasters that no matter what laws are passed to limit the adult content of American Websites, the same or harder material can easily be found on (and downloaded from) Websites based in Europe or the Far East.

"The Internet is not a physical or tangible entity, but is rather a giant network which interconnects innumerable smaller groups of computer networks," argues the lawsuit. "It is thus a network of networks, linked up for communications and data-sharing purposes. The Internet links networks of computers from around the world, forming what is in essence a global network of private and public computers, not regulated by the government of any nation or other central governing body.

"Through devices such as links, or more formally by explicit affiliation, Users of the Internet commonly form 'virtual communities,' loose associations of individuals or groups of similar value systems and/or interests to promote discussions of various topics."

What Nitke and the NCSF are concerned about is maintaining their abilities to engage in frank sexual discussions and to view and exchange "erotic content whether fictional, reminiscence or pictorial" on the Web.

"The websites of various NCSF members, both organizational and affiliate, and associates and affiliates of NCSF Foundation, are strongly sexual in content, but observe the mores of the communities in which they serve [~] that is, they respect the notion that sexual conduct between consenting adults should be 'safe, sane and consensual.' While they may be graphic in a manner that might be offensive to more traditionally-minded communities, members' websites are not patently offensive to the communities they serve. Moreover, members' websites uniformly require a declaration that any person accessing their content is of legal age, and provide advisories as to the nature of the matters discussed therein that are clear without being themselves explicit."

Moreover, "Plaintiff Nitke, as the proprietor of the website www.barbaranitke.com, publishes an array of erotically-oriented and themed images. Such images, while potentially offensive to members of more traditionally-minded communities, are not offensive to the members of the community to which plaintiff Nitke belongs."

That "community," according to the suit, is the group of voluntary Internet users who choose to access adult material on the Web. However, "The CDA does not provide any definition of 'local community standards' as an element of obscenity," argues the lawsuit. "Because of the indeterminate nature of what community standards would be employed to judge speech employing the medium of the Internet, plaintiff Nitke, members of plaintiff NCSF, and associates affiliates and board members of plaintiff NCSF Foundation have been chilled in their expression... By subjecting all speech on the Internet to potential liability under the local community standards of the most restrictive jurisdiction in the nation, the CDA is unconstitutionally overbroad."

The NCSF and Nitke aren't seeking any monetary damages through the suit. They are, however, asking the high court to define what the "community" of the Internet is.

"All the laws that we have on obscenity are based on local geographical standards," Wirenius notes. "It's a pre cyber-law world. The very definition of obscenity assumes the content provider can control where the content is viewed, and by limiting distribution he or she can limit the content's exposure. That's no longer true in an Internet age."

It's a case [~] Nitke v. Ashcroft [~] that adult webmasters should be watching at least as closely as ACLU v. Ashcroft, since both cases have the potential to enable free speech, even sexual speech, to the extent contemplated by an unfettered reading of the First Amendment [~] or, alternatively, to mire the Internet in such a morass of regulation that purveyors of adult material may have no choice but to relocate their servers offshore or in Europe.

The case, by virtue of provisions in the CDA itself, is on a "fast track," which means that once the Southern District of New York rules on its merits, any appeal will be taken directly to the U.S. Supreme Court. Still, the timetable of such action is currently indeterminable, but there's a better-than-even chance that an opinion in this case may come down even before COPA's. In any case, the whole adult community will be watching.

When Barbara Nitke wanted to put her photographs of loving couples on the Internet, she thought she should check into the laws first.

That's because Nitke's recent photographs have been focused on how some couples express their love through sado-masochism.

What Nitke found after reading up on Internet law and talking to lawyers was that the remnants of the Communications Decency Act of 1996, much of which was declared unconstitutional in 1997, could conceivably put her in hot water if her work was considered obscene in some communities. She feared she could be charged with a crime and be forced to take the work down.

So Nitke, along with the National Coalition for Sexual Freedom, a group described on its Web site as "committed to protecting freedom of expression among consenting adults", filed suit against Attorney General John Ashcroft and the U.S. government, challenging the CDA's use of "local community standards" to define what can be considered obscene on the Internet.

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